010-NLR-NLR-V-54-OBIYAS-APPUHAMY-Appellant-and-THE-QUEEN-Respondent.pdf
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Obiyas Appuhamy v. The Queen
[Court of Criminal Appeal]
1952 Present : Nagalingam A.C.J. (President), Gunasekara J. and Pulle J.OBIYAS APPUHAMY, Appellant, and THE QUEEN,
_ Respondent
Appeal 11 with Application 14 of 1952S. C. 17—M. C. Kanadulla, 7,229
Confession to police officerInadmissibility—Not restricted to actual terms of the
statement—Evidence Ordinance (Cap. 11), ss. 8 and 25 (1).
Evidence was led that the accused volunteered a statement to a police officer,who, thereupon, immediately handcuffed the accused and took him to the sceneof the offence.
Held,' that such evidence was inadmissible. It is not solely evidence of theactual terms of a confession that can be obnoxious to section 25 (1) ofthe Evidence Ordinance, but also any evidence which if accepted would lead tothe inference that the accused made a confession to a police officer would beinadmissible.
(1945) 46 N. L. R. 313.
GTTN'ASEKARA J.—Obiyas Appuhamy v. The Queen
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^^-PPEAX,, with application for leave to appeal, against a conviction ina trial before the Supreme Court.
J.G. Jayatilleke, for the accused appellant.
R. A. Kannangara, Crown Counsel, for the Crown.
Cur. adv. vuU.
March 17, 1952. Gunasekara J.—
This appeal raises a question as to the admissibility of certain evidenceregarding a statement made by the accused appellant to a police officerand the propriety of a direction given to the Jury about thatstatement.
The appellant was convicted on a charge of murder which was based oncircumstantial evidence and evidence of admissions alleged to have beenmade by bim to two persons, Aron and Velun, to the effect that he hadshot the deceased. According to the case for the Crown, the deceased,a man named William, had been shot dead at about 4 p.m. on the 8thMay, 1951, in the neighbourhood of a watch hut on a coconut estate,and on the evening of the same day a sub-inspector of police found aspent cartridge in' a vegetable garden behind the watch hut. It wasalleged that the cartridge was found in consequence of a statement whichwas made to the sub-inspector by the appellant who was then in his custodyat that place, and that the statement was that the appellant “ threw itinto the vegetable garden which is behind the watch hut ” and which hepointed out to the sub-inspector.
Before the sub-inspector gave this evidence the Crown Counsel hadelicited from him that the appellant came to the police station at about6p.m. and made a statement, which he recorded and the appellant signed,and that he then took the appellant to the scene of the shooting in view ofthe statement that he had made. Having referred to certain investi-gations that he made there he added that he “ recorded another statementfrom the accused the same day ”. After some further questions about hisinvestigation he was asked by Crown Counsel—
“ In connection with this case did you take anybody into custody ?”and he replied
“ I took the accused into custody. ”
The counsel for the defence then objected to the question.
Thereupon, according to the transcript of the shorthand note of theproceedings, the witness was further examined as follows :—
“ (Court : When did you take accused into custody ?
At the police station.)
Examination continued.Q. At what time ? After he made his statement to me at
6 p.m. and thereafter I brought accused to the estate.
{Court: How did you bring him ? rBy car.)
Q. Was he handcuffed ? I cannot sav.
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GUNASEK'A'RA J.—Obiyas A.ppuhamy v. The Queen
Q. Look at your notebook I handcuffed accused
immediately accused made a statement.
Q. Immediately he made a statement to you you arrested him? Yes)
The effect of the sub-inspector’s evidence as to what happenedat the police station at 6 p.m. is that the appellant turned up thereand volunteered a statement to him and he immediately handcuffedhim and took him to the scene of the shooting. This evidence clearlysuggests that the statement volunteered by the appellant at the policestation was a confession.
Section 25 (1) of the Evidence Ordinance (Cap.ll) provides that noconfession made to a police officer shall be proved as against a personaccused of any offence. It is not solely evidence of the actual terms of aconfession that can be obnoxious to this provision, but any evidencewhich if accepted would lead to the inference that the accused madea confession to a police officer and so “ prove ” such a confession.
There is support for this view in the decision of a Bench of threeJudges in R. v. Kalu Banda1-, the effect of which, as summarised byGarvin A.C.J. in R. v. Cooray 2, is “ that the prosecution may not invokethe aid of section 8 to enable a police officer to state what an accusedperson had not told him under circumstances which gave rise to theinference that the statement made to him was a confession ”. Healso pointed out that in that case “ the prosecution did not seek to givethe statement of the accused in evidence presumably because it wasthought to be inadmissible ” ; and that “ the view of the Court seems-to have been that the method they adopted was calculated to produceexactly the same effect as if a statement containing a confession had beenplaced before the jury”.
Mr. Kannangara sought to base on an observation in the judgment ofthis Court delivered by Howard C. J. in R. v. Gunawardene 3 a contentionthat the decision in Kalu Banda’s case can no longer be regarded as goodlaw. That observation relates, however, to a decision on a differentpoint, namely, as to the meaning of the term “Confession”. On thatpoint Bertram C. J. had said in B. v. UkJcu Banda 4:—
“ What I take Rex v. Kalu Banda (supra) to ha>e decided is this :That if the Crown at the trial of a prisoner tenders in evidence a state-ment made by the prisoner, whether self-inculpatory or self-exculpatoryin intention, with a view to an inference being drawn by the Courtfrom that statement .against the prisoner, that statement becomesex vi termini, as defined by section 17 (2), a 5 confession ’, and that ifit was made to a Police officer it cannot be received in evidence. ”
Referring to that view Howard C.J. said that if the decision in KaluBanda had the far reaching effect accepted by Bertram C.J. in Rex v.TJhku Banda it could no longer be regarded as good law. This Courtdid not dissent from the decision formulated above in the words of Garvin.A.C.J. although that formulation of it is quoted in the judgment.
4 {1912) 15 N. L. It. 422.3 {1941) 42 N. i. R. 217 at 221.
* {1926) 28 N. L. R. 74 at 80.4 {1923) 24 N. L. R. 327 at 333.
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GUNASEKARA J.—Obiyas Appuhamy v. The Queen
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The evidence given by the sub-inspector of police, tb the effect that theappellant volunteered a statement to him at the Police Station, and hethereupon immediately took the appellant into custody and in view ofwhat he had stated set out with him to the scene of the shooting,is inadmissible for the reason that if believed it would prove as againstthe appellant that he made a confession to the sub-inspector.
Under cross-examination the sub-inspector gave some particulars ofthis confession. He said, according to the shorthand note—
“ The accused came to the station and he made a complaint in whichhe stated ‘ then he rushed towards me and I fired again with my gunWilliam had arrived according to this statement at 4.30 p.m., and theymet somewhere near about the main gate. When the accused asked,him to go out of the estate, he said, William rushed towards him. ”
This evidence could have been admissible as part of the case for the defenceonly if the appellant himself had given evidence and it was sought tenprove the statement alleged to have been made by him to the sub-inspeetor as a corroborative statement admissible under section 157 ofthe Evidence Ordinance : R. v. Pitchoris.1 He did not give evidence,however, and the statement was therefore inadmissible as evidence onhis behalf. It was also inadmissible against him, for the reason that itamounted to a confession made to a Police officer notwithstanding thatthe admission of the incriminating fact is qualified by a plea of exculpation:R. v. Ranhamy 2.
The learned Judge in his summing-up drew the attention of the juryto the circumstance that the appellant failed to give evidence substanti-ating the plea of exculpation alleged to have been set up in that statement.
“ You may ask yourselves ”, he said, “ what is the value of that statement—the man did not get into the witness-box and substantiate it ”. Buthe also directed the Jury that there was before them evidence that theappellant admitted to the sub-inspector that he had shot the deceased-He said—
“ In this ease the Crown also relies on the admission alleged to havebeen made to Marthelis or Aron that he shot the deceased. Well,sometimes an admission like that is the strongest evidence against aman, and sometimes it is the most miserable evidence that you canpossibly put forward. It all depends on the person who speaks tothis alleged confession or admission. If you believe Aron or Martheliswith regard to this accused’s alleged admission, then that is evidence^against him. And of course in this particular case his own Counselwith regard to the shooting has elicited from the Inspector the factthat when the accused came to the police station that day he said thatthe deceased man rushed at him and he shot him in self-defence. Thatis an admission of the shooting. That is not an admission of thecircumstances in which he shot the deceased man. As a matter offact that piece of evidence was elicited by Mr. Obeysekere in order tosatisfy you that this was not a cold-blooded murder but it was precededby something which the witnesses for the Crown are unable to put-before you so as to complete the picture. You will bear that in mind.
1 0942) 43 N. L. R. 347.* 0940) 42 N. L. R. 221.
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Kunasingham v. Ponnambalarn
Although in this reference to the alleged confession the learned Judgestressed the accompanying exculpation, the Jury were at the same timedirected that it was open to them to base on the confession a findingthat the appellant shot the deceased. This was a misdirection in view ofthe provisions of section 25 (1) of the Evidence Ordinance.
It is impossible to say how much of the legally admissible evidencein the case would have been believed by the Jury if they had not beenmisdirected on this point or if the confession to the police officer had notbeen admitted in evidence. We are therefore unable to say that nosubstantial miscarriage of justice has actually occurred. We set asidethe conviction and sentence and we order a new trial.
New trial ordered.