1955Present :Weerasooriya, J.
PERERA, Appellant, and INSPECTOR OF POLICE,
S. C. 954. of 1953—M. G. Kandy, IS,971
Evidence Ordinance—Section 24—Confession caused by inducement or threat—Burdenof proof.
When the question whether n confession, hncl been caused in tho circumstancesof any inducement, threat or promise referred to in Section 24 of tho EvidencoOrdinance arises, the Court would have to decide that question on tho basisthat tho burden is on the prosecution to satisfy Court that it was not socaused. •
If objection is taken to the admission of a confessional statement it is tho dutyof tho party who takes the objection to formulate tho grounds of objection sothat the Court may consider tho grounds and adjudicate on them.
j/^PPEAL from a judgment of t-lie Magistrate’s Court, Kandy.
Colvin R. de Silta, with L. F. Ekanayake, for the accused-appellant.
N.T. D. Kanakaratne, Crown Counsel, for the Attorney-General.
Cur. a lv. vult.
January 2k, 1955. 'Weerasoobiva, J.—-'
In this case learned counsel for the accused strenuously argued that theMagistrate had been tinder a misconception ns regards the burdon ofproof when .he admitted in evidence tho documont P13 which as held'by him amounted to a confession. In this connection learned counsel•pointed out to the observations of the Magistrate, when the question oftho admission of the document first arose, which read as follows : " The^accused appoars to mo to be an educated young man and till such time-as I can bo convinced that the confession was not made perfectly volun-tarily without any semblance of inducement, threat or promise held out-either by tho Superintendent or by the proprietor I will permit evidence■on it being led. ” Learned counsel submitted that these observationsindicate that the Magistrate took the view that the document wouldbo admissible unless he was convinced that it was not a voluntary state-ment and it had not been the result of any inducement, threat or promise,it seems to mo that these observations of the learned Magistrate doindicate that he thought that the burden of proving that the confessionwas inadmissible was on the defence.
There are several decisions which hold that in regard to a confessionwhich tho prosecution seeks to put in the burden is on tho prosecutionto show that it is an admissible one, vide the cases reported in 1 N. L. R.page 209, 42 jV. L. R. page 36S at page 370, and page 533 at pages 556■and 557; also IS Cox’s Criminal Cases page 717. In this case when thequestion of the admissibility of this document first arose, tho Courtvery properly asked defending counsel whether tho defence objected totho document. Counsel for the defence was contented to state that ho" formally ” objected to it, an objection which I have come across onmore than one occasion but is the kind of objection which passes my■comprehension. If an objection is taken to the admission of a document,
I think it is for counsel who takes tho objection to formulate the grounds■of objection so that the Court may consider the grounds and adjudicate-on them. Having regard to the fact that counsel for the defence only“ formally ” objected to tho document but did not formulate the groundsof objection, the burden that rested on the prosecution at that stage toshow that the document was admissible could have been rogarded asreadily discharged, and I do not think it would have been open to counselfor the appellant to have made much of what tho learned Magistrate hadstated with regard to the admissibility of. this document at that stageJiad nothing further happened, but in tho course of tho trial tho accusedgave evidence and made various allegations as to tho circumstances inwliicli P13 was obtained from him which it was the duty of the Magistrateto consider, and in the learned Magistrate’s judgment when ho revertedto the question of tho admissibility of P13 ho says, “I allowed PJ3 togo in. P 13 is in point of fret a confession of guilt and when I permittedits being led in evidence I did inform the defence that- if at any time I was•satisfied that it should not have been admitted I would have ruled itout. ”
This statement leads one to conclude that the document having beenadmitted, the learned Magistrate was of the view that it could bo usedas evidence against tho accused unless and until lie was satisfied that itshould not have been admitted in the first instance. I do not think thisis .the legal position. Even if a confession has been admitted, and in thosubsequent course of the trial as a result of further evidence that may bo
elicited the question whether the confession had been caused in the cir-cumstances referred, to in Section 2-i of tlio Kvidenco Ordinance arises,,the Court would have to decide that question on tho basis that the burdenis on tho prosecution to satisfy Court that it was not so caused. .
It is not possible for me to state what view the learned Magistratewould liavo taken of document P13 had ho directed his attention to iton tho basis of the burden of proof as indicated above, and it is also notpossible for me to state what view he would have taken of the other-evidence against the accused, particularly the oral testimony of tho wit-nesses, had he on a proper consideration of the question of the admissi-bility of P13 come to tho conclusion that it should be rejected. Inthese circumstances it seems to me that I cannot avoid the course whichI somewhat reluctantly adopt of setting aside the conviction and sentencesand sending the case back for a fresh trial before another Magistrate-on tho three counts on which the accused has already bec-n convicted.
Sent back for fresh trial.
PERERA, Appellant, and INSPECTOR OF POLICE GALAGEDARA, Respondent
1955Present :Weerasooriya, J.