023-NLR-NLR-V-64-O.-GOONEWARDENE-Petitioner-and-M.-J.-DE-SARAM-Respondent.pdf
Goonetvardene v. de Saram
145
1962Present : H, N. G. Fernando, J., and Herat, J.
O.GOONEWARDENE, Petitioner, and M. J. DE SARAM,
Respondent
£>. C. 207 of 1962—Application in revision in D. C. Colombo, 51620/M
Evidence—Statement made by a person to a police officer in the course of an investigationinto a cognizable offence—Nature of the prohibition against the admissibility ofsuch statement in evidence—Procedure for use of statement—Presumption ofregularity as to the recording of the statement—Criminal Procedure Code, s. 122(3)—Evidence Ordinance, ss. 21, 27, 114, 145 (1), 155, 157—Civil ProcedureCode, s. 154,
Interlocutory appeal—Stay of proceedings pending appeal refused by District Court—Right of appellant to seek relief by way of revision.
Where a statement has been recorded by a police officer in the course of aninvestigation into a cognizable offence, tVie prohibition as to its use contained insection 122 (3) of the Criminal Procedure Code would apply despite the fact thatthe person making the statement may have affixed his signature thereto.
The decision of five Judges in R. v. Buddharakkita et al. (63 N. L. R. 433),while clearly stating that a statement (whether it be the oral statement or thewritten record) made to a police officer under section 122 of the Criminal Pro-cedure Code cannot be provod as an admission under section 21 of the EvidenceOrdinance, or as “ corroboration ” under section 157 of the Evidence Ordinance,did not disapprove of tho use of the written record for purposes of contradiction.Sub-section 3 of section 122 of the Criminal Procedure Codo does not prohibittho use of tho written record for purposes of contradicting a witness in termB ofsection 155 of tho Evidence Ordinance, whether in criminal or civil proceedings.Buddhadasa v. Mahendran (5S JJ". L. It. 8), considered.
When a statement recorded under section 122 of the Criminal Procedure Codeis proposed to be utilised as a mode of contradicting a witness, there would attachto tho record the rebuttable presumption referred to in section 114 ofthe Evidence Ordinance that an official act has been regularly performed.
Where an interlocutory appeal is filed in respect of an order which goes to theroot of a case and it is convenient and in the interests of both parties that thecorrectness of that order should be tested by an early decision of the appellateCourt, it is opon to tho appellant to move tho Supreme Court in revision boforethe next date of trial if stay of proceedings pending the interlocutory appoal hasbeen refused by tho District Court.
Application to revise an order of the District Court, Colombo.
C. Thiagcdingam, Q.C., with M. Tiruchelvam, Q.C., and G. T. Samera-vrickreme, for defendant-petitioner.
H. W. Jayewardene, Q.C., with C. Ranganathan, S. J. Kadirgamar,K, Viknarajah and S. S. BasnayaTce, for plaintiff-respondent.
7—LXTV
2H 4710—1.SS3 (9/6£)
Cur. adv. milt.
140
H. N. G. FERNANDO, -T.—Oooncwardene v. de Saram
June 6, 1962. H. N. G. Fernando, J.—
The plaintiff is suing in this action for the recovery of damagessustained in an accident alleged to have been caused by the negligentdriving of the defendant’s car. The defence set up is that the accident isdue either to negligence or to contributory negligence on the part of theplaintiff, who was riding a motor scooter.
The plaintiff, in the course of her evidence at the trial, maintained thatwhile she was riding her scooter on the left side of the Havelock Road in .the. direction Colombo to Nugegoda, the defendant’s car approached heron the same side of the road, alleging thereby that the defendant hadbeen driving his car on the incorrect side of the road. According to theplaintiff there was no other traffic approaching her except the defendant’scar. The time was about 8 p.m. and the road was slightly wet and shehad warning.of the approach of the defendant’s car because its head lightswere on. She stated that she attempted to avoid a collision by moving alittle across the centre of the road, but this did not prevent the defendant’scar from striking the scooter.
At this stage counsel for the defendant called for the original of thestatement which had been made by the plaintiff to a police officer on 26thOctober 1959, three days after the accident. Objection was taken to theproduction of the extract from the Information Book containing the state-ment, on the ground that the statement, having been recorded undersection 122 of the Criminal Procedure Code, was not admissible in evidencein order to contradict the plaintiff’s testimony at the trial. The learnedDistrict Judge at first upheld this objection. It subsequently appearedhowever that the record made by the police officer had in fact been signedby the plaintiff and contained in addition an endorsement that it had beenread over and explained to the plaintiff before she signed it. In view ofthese matters the learned Judge thought that the statement would beadmissible despite the provisions of section 122 (3) on the basis that, al-though the section prohibits the signature being taken, neverthelessif the record had in fact been “ adopted ” by the plaintiff, the prohibitionin section 122 (3) would not apply. The learned Judge accordingly calledupon counsel for the defendant to lead evidence which might satisfy him :
that the statement was read over and explained to the plaintiff,
that it was signed by her, and
. (3) she admitted it to be correct.
After hearing evidence of the Inspector who recorded the statement, thelearned Judge held that although the statement had been signed by theplaintiff he was not satisfied on the police officer’s evidence that theplaintiff had indeed adopted as her own the record made by the policeofficer.
We think that if a statement had been recorded under section 120 of• the Criminal Procedure Code, then the prohibition as to its use containedin sub-section (3) of the section would apply despite the fact that the
H. N. G. FERNANDO, J-—Goonewardene v. de Saram
147
person making the statement may have affixed her signature thereto. Itseems to us that when a person has in fact been examined by virtue ofthe power conferred by section 122 of the Criminal Procedure Code, thestatement then recorded does not lose the character of a satement referredto in the section, and is not freed from the disabilities imposed on its use,merely because in the process of recording it the police officer may havedisregarded those provisions of the section which prohibit him fromobtaining the signature of the person examined.
Some suggestion was made to us in the course of argument that thestatement sought to be used had nof been shown to be one recorded undersection 122 in the course of an investigation into a cognisable offence.It seems clear however that no such suggestion was made at the trial court;that being so, we are not disposed to act on any basis differentfrom that which was assumed by all parties, namely that a statementrecorded by a police officer in the course of an inquiry which has in factbeen entered in the Information Book was one recorded under section122. The question of its admissibility has therefore to be determined onthat basis.
The learned trial Judge, in holding that a statement recorded undersection 122 cannot be used to contradict the testimony of the personmalting it, very properly adopted the opinion to that effect expressed byWeerasooriya, J. in Buddhadasa v. Mahendran1 : “ quite apart from therestriction imposed by section 122 (3) of the Criminal Procedure Codeon the use of that statement in criminal proceedings, such a statementcannot be used even in civil proceedings either to corroborate or to con-tradict the witness whose statement it purports to be ”. The ground asjust stated was one of the reasons why in that case Weerasooriya, J.declined to order certified copies of statements recorded under section 122to be issued to a party engaged in a civil action. If I may say so withrespect, the opinion so expressed was justified by certain dicta of themajority of a bench of five Judges of the Court of Criminal Appeal inJR. v. Jinadasa2, which constituted a severe “disparagement” of thelegal and evidential value of a record made under section 122 :
"Furthermore, upon that construction, if it is sought to contradict awitness by proof of a statement made by him on an examinationunder section 122 (1), the only evidence that can be tendered in proofof that statement is the record of it made by the police officeror inquirer. It follows that there would be sufficient proof of it, if theauthenticity of the record is established, and the witness is identified asthe person whose statement the police officer or inquirer has purportedto record. There is no requirement of law that it is only by theevidence of the person who has made the report that its authenticitycan be proved. Nor is it necessary as a matter of law that the evidenceby which a person is identified as a person referred to in the record bethe evidence of the person making the record. Therefore, according
1 (195*) 58 N. L. JR. 8 at p. 13.
2 (1950) 51 N. L. It. 529.
148'
H. N. G. FERNANDO, J.—Gornewardene v. de Saram
to the view-taken in Harmanisa's case, a witness can be contradictedby a statement imputed to him in a document to which he was not aparty, and which was made by a person who need not himself giveevidence, although the statement imputed to him has .never beenaccepted by him as being correct, or oven read by him or to him, andwhich he has not signed. In other words, he can be contradicted byhearsay, even though the person who has alleged that that personmade that statement in question may bo alive and able to attend ,thotrial and competent to give evidence .”
Apart from the question of legal admissibility, the court in Jinudasa’scase thought that a police officer’s written record of what was stated tohim by some person would be valueless as a mode of contradicting thesubsequent testimony of that person, the reason for this view being that therecord is only a “ reporter’s account” of what was said by the personexamined and not a written statement either written or adopted by thatperson. But while such a person’s written or adopted statement could beof far greater value for purposes of contradiction, it docs seem to me that thepolice officer’s record, unsigned though it be by the person examined, ismore valuable evidence of what was stated than the officer’s recollectionof oral answers to questions. If, as Jinadcisa’s case decided, these oralanswers can subsequently be proved from recollection, and. a“ contradiction ” thereby established, the written statement would seemto be of greater weight to establish the contradiction.
The judgment in Jinadasa's case has recently been construed in theunanimous decision of another bench of five Judges in R. v. Buddharakkitaetal.1 as authority only for the proposition that section 122 of the CriminalProcedure Code does not render inadmissible proof of statements of thedescription specified in section 27 of the Evidence Ordinance and therecent decision does not follow or approve the distinction made in theJinadasa judgment between the oral statement and the written record inpoint of either admissibility or value. Even earlier, in R. v. Aladiti 2,three Judges of the Court of Criminal Appeal appear to have assumedthat the appropriate mode of contradiction would be to use the writtenrecord, first showing to the witness, in terms of section 145 (1) of the Evi-dence Ordinance, those parts of the statement intended to be used for the •purpose of contradiction. In fact despite the observations in the Jinadasajudgment, this mode of contradiction which is often utilised at the Assizeson behalf of the defence, has not subsequently been criticised in appeal,the only clear opinion being that expressed by Weerasooriya, J. Butthat opinion was not adopted in my own brief judgment in the same case(5S N. L. R. at page 14). Indeed, although in that case this court declinedto make an order for the furnishing of certified copies of statements re-corded during an investigation made under Chapter XII of the Code,there is now statutory provision in Acts Nos. 42 and 43 of 1961 whichwould at the present time entitle a party to a civil action to obtain• certified copies of such statements.
1 (VJG‘2) 63 N. L. R. 433.
8 {1959) 61 N. L. R. at p. 15.
H. N. G. FERNANDO, T.—Ooonewardene v. de Saram
149
The five Judges who decided the Buddharakkita appeal, while clearlystating that a statement made under section 122 cannot be proved as anadmission under section 21 of the Evidence Ordinance, or as " corro-boration ” under section 157, did not disapprove of the use of the writtenrecord for purposes of contradiction. That such an use is not prohibitedby section 122 (3) iB at least the first impression created by the words inthe sub-section “ except to prove that a witness made a different state-ment at a different time Prima facie this would appear to mean thatwhen a witness gives his testimony the record of a former statement madeby him to a police officer can be used for the purpose referred to in section155 of the Evidence Ordinance. If such an use of the written record isnot permitted, then the words of the exception clause in sub-section (3)would now have no effect at all. If, as laid down in the Buddharakkita,judgment, the statement (whether it be the oral statement or the writtenrecord) cannot be utilised under section 21 or section 157 of the EvidenceOrdinance and if in addition it is also assumed that the statement cannotbe used for purpose of contradiction, then there will be no occasion what-ever to show that a witness made a different statement at a different time.Even the narrow construction placed on this clause by Weerasooriya, J.could not then apply : for if a police officer can speak neither to an . admis-sion, nor to a former corroborative statement, nor to a former incon-sistent statement, then no occasion can arise for a police officer to give anytestimony (as to a previous statement made to him), which needs to becontradicted and accordingly also no. occasion to show that his own priorrecord is in conflict with evidence given by him. Accepting as I con-fidently do the correctness of the view that a statement under section 122cannot be proved as an admission or in corroboration, I am satisfied thatadherence to the plain meaning of the exception clause is necessary sincein that way alone can one avoid a construction which would deprive theclause of any effect. I would hold therefore that even in criminalproceedings the written record can be proved in terms of section 155 ofthe Evidence Ordinance.
This is not to say however that any variation between a testimony of awitness and the record of his previous statement will conclusively establishthe falsehood or incorrectness of his testimony. Not much force remainsin the criticisms contained in the observations in the Jinadasa judgmentwhich have been cited above, when one takes account of the fact that thecourt must in each case determine in the light of all the circumstancesthe value to be attached to a report, whether rendered from recollectionor in the form of a record, of what a witness is alleged to have stated on aformer occasion.
Among the circumstances relevant in this connection there would beincluded such matters as the honesty, credibility and efficiency of theofficer by whom the statement was recorded, and if those matters aresatisfactorily established the stage will be reached for considerationintrinsically of the content of the statement alleged to have been madeby the person examined.
2*B, 4719 (9/02)
160
H. N. G. FERNANDO, J.—Qoonewardene v. de Saram
In view of certain proceedings which took place at the trial at thepresent action it is useful to consider what procedure should be adoptedwhen it is sought to use a statement recorded under section 122 for thepurposes of contradicting a witness. The normal mode adoptedboth in civil and criminal courts is that the witness is in terms of section145 (1) of the Evidence Ordinance referred to those parts of the statementwhich are to be used for contradiction and generally speaking this is donebefore the record itself is formally proved. Indeed such formal proofmay in the event become unnecessary if the witness admits having madethe statements imputed to him. Section 154 of the Civil Procedure Code(in the last paragraph of the explanation) does appear to contemplatethat a document can be marked and used even before the court decided toadmit it, a practice commonly referred to as “ marking subject to proofWhile I do not say that the learned Judge was in error when he requiredcounsel for the defendant to lead evidence as to the circumstances in whichthe plaintiff’s statement came to be recorded as a condition precedent toadmitting the statement in evidence, and while such a requirement may insome instances bo rightly considered necessary in the discretion of thecourt, I do not think that ordinarily such a requirement need be imposedwhen a statement recorded under section 122 is proposed to be utilised asa mode of contradiction. The statement is one required by the sectionto be reduced into writing and there would in my opinion attach to therecord the rebuttable presumption referred to in section 114 of theEvidence Ordinance that an official act has been regularly performed.It is unfortunate that in the instant case the learned District Judge com-menced his consideration of the question of admissibility without regardto this presumption. The learned Judge appears also to have formed theopinion, prematurely, that the record had not been read over to the plain-tiff before she signed it, and also that because she is alleged to have beenunder sedation the statement as recorded was of no value. But thestage for forming opinions with respect to such matters had not yet beenreached. If in fact the record does show that the plaintiff’s previousstatement differs from her testimony in court, the burden will fall on theplaintiff to explain both any apparent contradictions, as also her conductin volutarily affixing her signature to the record. Whether sedationper se is a sufficient explanation of all alleged inaccuracies in answers topolice inquiries, is a matter which might arise for consideration.
Counsel for the defendant has before us referred with the utmost res-pect to the fact that the learned District Judge has already formedopinions unfavourable to the authenticity and value of the Inspector’srecord. But I can have no doubt that when the trial is continued incompliance with the order we propose to make, the circumstances and themanner in which the record was in fact made will, if disputed, be investi-gated afresh without regard to any impression formed when the samematters were previously considered in a somewhat different context.
We are invited in these proceedings to give effect to our view that theplaintiff’s statement should have been admitted in evidence for purposesof contradiction. I realise that an order to this effect would be unusual
H. N. G. FERNANDO, -T.—Goonewardene v. de Saram
151
having regard to the fact that the action is pending and that the appli-cation for an order comes up "by way of revision and not through an inter-locutory appeal. There is the further feature that the view which mybrother and I have formed on the question of admissibility is opposed tothat expressed by Weerasooriya, J., which latter the learned DistrictJudge was entitled and perhaps even bound to follow. Accordingly itseems necessary to state briefly reasons for the decision to intervene atthis stage.
The case of Girantha v. Maria1 is of considerable assistance, though notdirectly in point. There the plaintiff had been cross-examined on thebasis that she had on the occasion of an inquiry into a petition concerninga land dispute stated to a Police Inspector “ that she had not been inpossession of this land for the last ten years ”, but the plaintiff deniedhaving made such a statement. After the case for the plaintiff was con-cluded, and before the trial was resumed, the proctor for the defendantsfiled an additional list of witnesses citing the Inspector to give evidenceand to produce his official report in which apparently the plaintiff’s allegedstatement was mentioned. The learned District Judge however upheldan objection to this evidence being taken on the ground that the Inspector’sname did not appear on the list of witnesses filed on the original trial date.An appeal was taken against this interlocutory order and the DistrictJudge stayed proceedings pending the appeal. It is sufficient for me toquote without comment the following passages from the judgment ofGratiaen, J. :
“ A preliminary objection was raised on behalf of the plaintiffsthat the appeal was wrongly constituted and should not be entertainedon the ground that an interlocutory appeal does not lie against an inci-dental order of this nature. Counsel argued that the defendantsshould have proceeded with the trial notwithstanding the order appealedfrom, and raised the question thereafter, if necessary, in the form of afinal appeal to this court. Counsel referred us to certain observationsof Keuneman, J. andPoyser, J.in Balasubramaniam v. Vattiappa Ohetty,39 N. L. R. 553 in support of his contention.
“ The correct view appears to be that although this court undoubtedlyhas jurisdiction to entertain interlocutory appeals of this nature,the attitude of the court in disposing of such appeals must necessarilydepend on the circumstances of each case. The main consideration isto secure finality in the proceedings without undue delay or unnecessaryexpense. On the one hand therefore this court would always * dis-courage appeals against incidental decisions when an appeal mayeffectively be taken against the order disposing of the matter under con-sideration at a final appeal. ’ (per Bertram, C. J. in Fernando v. Fernando8 C. W. R. 43). I do not think that either Keuneman, J. or Poyser,J. in Balasubramaniam v. VaUiappa Chetty {supra) intended to laydown any principle of wider application than this.
'{1948) 50 N. L. n. 519.
102H. N. G. FERNANDO, J.—Goonewardcne v. de Saram
“ Cases may well arise, however, where the point involved in an inci-dental order goes to the root of the matter, and it is both convenient andin the interests of both parties that the correctness of that order shouldbe tested at the earliest possible stage in an interlocutory appeal.Indeed as Sampayo, J. pointed out in Arumugam v. Thambiah, 15N. L. R. 253, an early decision of the appellate tribunal on the point indispute might well obviate the necessity of a second trial. In such acase this court would not refuse to entertain an interlocutory appealagainst an incidental but far-reaching order of the trial Judge. ” (atpage 521.)
• . < #* *
The order in the present case which excludes the statement certainlygoes to the root of the matter, for the learned Judge has stated in one ofthe orders referred to during the argument that “ the purpose for whichthe defendant seeks to admit this document is vital to it ”. Moreover, itis both convenient and in the interests of both parties that the correctnessof this order should be tested at the earliest possible stage, and it is also thecase here that an early decision of the appellate tribunal on the point indispute might well obviate the necessity of a second trial. If indeed, as wethink, a vital document has been excluded although it is in law admissible,it would be Only reasonble to expect that a final judgment reached by the.trial Judge without the use of the statement may be ultimately set asideon the ground of improper rejection of the statement. No inconveniencewould be caused to the parties by its admission at this stage for the trialwas adjourned in the ordinary course to 10th June 1962, before whichdate our order can be made.
The only difference therefore between the present case and that decidedby Gratiaen, J., is that the defendant’s complaint is in the present casebeing considered in proceedings in revision and not in an interlocutoryappeal. The circumstances would have been exactly parallel if the learnedJudge had, as was done in the other case, in his discretion granted a stayof proceedings pending the interlocutory appeal which the presentappellant had in fact taken. There is much force in counsel’s contentionthat since no stay was granted, his only mode of securing the interventionof this court before the resumption of the trial was to seek an order inrevision.
In view of the opinion I have formed as to the nature of the prohibitionimposed by section 122(3) against the admission of statements recordedunder that section, it is unnecessary to consider the further argumentthat in any event the scope of the prohibition is limited to criminal pro-ceedings and does not cover the use of such statements in a civil action.It suffices to mention that support for this argument is to be foundin the judgment of Howard, C. J. in Chitty v. Peries x.
For the reasons stated, I set aside all proceedings taken after the stageat which the evidence of the plaintiff was interrupted on 21. 3.62 whencounsel for the defendant called for the original statement of the witness
1 (1940) 41 N. L. R. 145.
Arnolda v. Oopalan
153
to the police with a view to using the statement in order to contradictthe witness, including the proceedings of 22.3.62 at which the evidenceof the Inspector of Police and of Dr. Nilar was taken, as well as the ordersmade by the learned District Judge on 21st and 22nd March 1962, anddirect that when the trial is resumed the defendant will be entitled to useand produce in evidence the record of the plaintiff’s statement alleged tohave been made to the police on 26th October 1959. In view of the specialcircumstances, I direct that the costs of all proceedings taken after theinterruption above referred to as well as the costs of this application willabide the ultimate result of this action.
Herat, J.—1 agree.
Application, allowed.