046-NLR-NLR-V-55-P.-M.-PETER-SINGHO-Appellant-and-M.-B.-WERAPITIYA-S.I.-Police-Respondent.pdf
Peter Singho v. Werapiliya
155
1953Present: Gratiaen J.
P.M. PETER SINGHO, Appellant, and M. B. WERAPITIYA(S. I., Police), Respondent
S. C. 835—M. C. JBadulla-Haldumulla, 10,128
Evidence—-Character—Evidence of pending prosecution—Presumption of innocence
Evidence Ordinance, s. 54—Effect of reception of inadmissible evidence in
Magistrate’s Court.
An accused person who put his “ good character ” in issue was asked incross-examination whether there was not pending against him a criminalcase—
Held, that the question was inadmissible.
Where a trial Judge has permitted himself, through an improper appreciationof the law, to allow evidence to be led which is of such a character as to pre-judice the chances of a fair trial on the real issues in the case, the improperreception of the evidence is fatal to the conviction of the accused, althoughthe accused has been tried not by lay jurors but by a Magistrate trained inthe law.'
^LPPEAL from a judgment of the Magistrate’s Court, Badulla-Haldu-mulla.
H• V. Perera, Q.C., with Jf. M. KumaraJculctsingham, for the accusedappellant.
N. T. D. KanaTcaratne, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
156
GKATIAEN J.—Peter Singho v. Werapitiya
July 14, 1953. Gratiaen J.—
This is an appeal against two convictions on charges of cheating.
The evidence in the case discloses a most disturbing state of affairs inregard to the techniques which are unashamedly claimed to be employedby certain classes of people in the hope of securing employment for theirfriends or relatives as Government school teachers.
The case for the prosecution is that in 1949 a contractor of moderatemeans in Bandarawela was anxious that his daughter Leelawathie, whohad recently passed her S. S. C. Examination in Sinhalese, should obtain■employment as a school teacher. He consulted his friend, an Ayurvedic^physician, who apparently devotes his spare time to the activities of a“ contact man ”, as to how this ambition could be realised. Thisfriend suggested that they should approach the Headmaster of a Govern-ment school (the accused) who was believed to enjoy the confidence ofa certain Education Officer. Indeed, the physician concerned assertsthat he had obtained similar employment for his own daughter by"bribery through the agency of “ another headmaster ”. The accusedwas accordingly approached; and, after certain preliminary discussionsof a thoroughly discreditable nature had been concluded, it was agreedthat he should offer a bribe of Rs. 100 to an Education Officer. A fewmonths after the money was paid, the girl was still unemployed. Theaccused explained that a further bribe of Rs. 100 was necessary. Thissum was also handed to him for transmission to the “ proper authorityA considerable time elapsed, but the girl did not receive her promised-letter of employment. The disappointed parent complained to theauthorities, who ordered a departmental inquiry, which curiously enough,resulted in a compromise whereby the parent agreed to treat the sum ofRs. 200 as a “ loan ” granted by him to the accused. Two years later theaccused was prosecuted in the Magistrate’s Court of Badulla-Haldumullafor cheating the parent in respect of each sum of Rs. 100 by “ deceivingfiim into the belief that he would get his daughter a teacher’s appointment,by offering a bribe to the Education Officer, Badulla”.
The manner of cheating specified in the charge is not quite clear, and■one is left in doubt as to what precisely was the false representation^complained of. If, for instance, the alleged bribe was actually offeredand accepted, was the offence nevertheless established because thealleged assurance of employment had failed to materialise ? WasJ thefalse representation complained of that the bribe would be offered or-that the employment of Leelawathie would be secured ? A charge ofcheating should always particularise the facts relied upon as constitutingthe offence which is sought to be established. I have not been able toascertain with any certainty how the learned Magistrate or the partiesunderstood the case which the accused was called upon to meet in thelower Court.
The defence set up by the accused was itself thoroughly discreditable.He admits some of the facts spoken to by his self-confessed accomplices,Jbut his version, if true, exonerates him of cheating. In the sharp conflict
GRATIAEST J.—Peter Singho v. Werapitiya
157
-of testimony which arose on the vital issues in the ease, the learnedMagistrate accepted the evidence led by the prosecution, and convictedthe accused on both counts.
Mr. Perera has criticised the judgment in many respects, but, in theview which I have taken, it is sufficient to say that the convictions cannotstand owing to the gravely prejudicial misreception at the trial of oneparticular item of inadmissible evidence.
The accused had advisedly taken the risk of putting his “ goodcharacter ” in issue. It was, therefore, open to the prosecution, if theycould, to prove his “ bad character ” under section 54 of the EvidenceOrdinance. Instead of doing so they suggested to him in cross-examin-ation (and he was forced to admit) that there was pending against himat the time a criminal case in which he was charged with forgery.
“ The mere fact that a man has been charged with an offence is noproof that he committed the offence. Such a fact is irrelevant; it goesneither to show that the prisoner did the acts for which he is actuallybeing tried nor does it go to his credibility as a witness ”. Maxwell v.
P. P.x. This principle was reaffirmed by Lord Simon in Stirland v.
P. P.2.“ It is no disproof of good character ” he said , “ that a man
has been suspected or accused of a previous crime. Such questions as' Were you suspected ? 5 or ‘ Were you accused 1 5 are inadmissiblebecause they are irrelevant to the issue of character, and can only beasked if the accused has expressly sworn to the contrary ”.
If and when the pending charge of forgery is taken up for trial, theaccused will be entitled to rely on the presumption of innocence untilhis guilt is established beyond reasonable doubt. How then can themere existence of that charge which has not yet been established, beregarded as a slur on his character for the purpose of discrediting himin the present trial ? Any such notion, as Lord Sankey pointed outin Maxwell’s case (supra), is contrary to the whole idea of criminaljurisprudence.
Learned Crown Counsel conceded that this evidence should not havebeen admitted, but he invited me to hold, as was done in The King v.Perera3, that its improper reception was not fatal to the convictionbecause the accused had been tried not by lay jurors but by a Magistratetrained in the law. I do not see how this distinction can be drawn wherea Judge of first instance has, in spite of his legal training and experience,permitted himself, through an improper appreciation of the law, to allowevidence to be led which was of such a character as to prejudice thechances of a fair trial on the real issues in the case.
I have anxiously considered whether I should send the case back forre-trial before another Magistrate. The charges against the accusedare of a serious nature and it may he that, upon the relevant and admissibleevidence, his conviction would have been justified. But we are hereconcerned with offences alleged to have been committed over four years
. 1 (1935) A. C. 309.® (1944) A. C. 315-.
(1941) 42 N. It. R. 526.
158
SWAN J.—Velupillai v. Palanyandy
ago, and it does not seem to me just to call upon Mm to defend himselfa second time after such an unconscionable lapse of time. X, therefore,set aside the convictions and acquit the accused.
X cannot conclude without a reference to one aspect of the evidenceof the accused. He expressed the view, without any apparent sense ofshame, that he saw no particular harm in bribing a public officer tosecure employment for Leelawathie, “ because it was a meritorious thingto get a job for a girl One can but hope that this Headmaster of aGovernment school has not imparted these contemptible doctrines tothe cMldren entrusted to Ms care. XJpon Ms own version of tMs sordidincident, the accused stands condemned as a person who is disqualifiedto undertake the responsibilities of a school-teacher.
Convictions set aside.