043-NLR-NLR-V-17-PERIS-v.-SILVA-et-al.pdf
Present: Pereira J.
PERIS v. SILVA et ah848 and 849—P. G. Colombo, 43,140.Conspiracy—Evidence—Statementsmade by oneaccused—Evidence
Ordinance, $. 10—Misjoinder.
, Where A and B were charged with attempting to extort moneyfrom G—held that the statements made by B to C implicating^ A, anddisclosing a conspiracy on the. part of A and B to commit extortion*were inadmissible as against A.
Section 10 of the Evidence Ordinance (No. 14 of 1695)' applieswhen it is first established aliunde that there are reasonable* groundsto believe that two or more persons have conspired together tocommit an offence. The statements relied on cannot * – themselvesbe taken as evidence of the existence of such reasonable grounds.Such grounds must first be established in order to pave the way forthe admission of the statements as evidence, and when so admittedthey may be. additional proof of the conspiracy.
The question of misjoinder of charges and of accused has* to belooked at in the flight of. the case that the prosecution' presented tothe Court and endeavoured to establish. The mere1 fact- that theprosecution failed to establish its case (that the accused wereacting in conspiracy and that the acts were committed in theS courseof one transaction) to the satisfaction of the Court as regards someof the charges, or as regards any one of the accused, iB not evidenceeither of misjoinder of charges or of accused parties.
*TVHE first accused in this case was charged by the complainant. with having committed theft of certain letters belonging tbMr. J. S. W. de Soysa (Penal Code, section 370), and further, with
( 140 )
1913.
.• #4ris v.&0W*
having aided the second accused in attempting to extort. fromMr. • J. S. W. de Soysa a sum of money (Penal Code, sections 374and 102) in respect of the return of the letters.
The second accused was charged under section 374 with attempt-ing to commit extortion, and also under section 396 of the PenalCode. Aftertrial the learned Magistrate foundfirstaccused
guilty under sections 374 and 102, and the second accused undersection 374. Each accused was sentenced to six months' rigorousimprisonment.
The learned Magistrate (E. B. Sueter, Esq.) delivered the followingjudgmnt.—
Second Accused.—The case against the second accused is that he»went to the house of Mr. Walter de Soysa (on October 22), who had theconversation reported inshorthandin thedocumentsAana B. He
said he came from Bomeal Silva, the first accused, and he wanted moneyfor- 'thereturn of certain letters stolenfrom Mr. deSoysaandsaid to
be with BomealSilva.Thethreatused was that ifthemoney asked
were not paidthe letters wouldbe handed over to theotherside. The
second accused denies the correctness of the report of the interview.
It appears to me the record of the interview is a true one
It seems to me' that the charge of attempted extortion is proved against
him.. I find him . guilty under section 374 …… I acquit him
of the charge under section 396
First Accused.—The charges against the first . accused are that hestole some lettersof Mr. deSoysawhile hewas hisclerk,and recently
abettedthesecondaccused indemanding blackmail.Thesecond
charge may betakent first.Theevidenceis of statements made at
the interviewagainst him bysecond accused. Theseinthemselves
might not besufficient, as therewould be no guaranteethatthey were
true. – But there arc certain circumstances pointing to the first accusedacting withthe second accused. Thereisthefact thatsecond accused
had nothingto dowith Mr. de Soysa,while first accusedwas* his clerk.
Then thereis thesignificant statementbyMr.de Soysathat- Bomeal's
uncle was watchings- the gate on the day second acoused came. I see-this is confirmed by amention in the transcriptB,and Iacceptit as
true. Itherefore findthe first accused guiltyofabetting', thesecond
accused in his offence under section 374, as he instigated and conspiredwith him tocommitthis offence. Asfor the chargeunder section 379,
there isa certain amount of vagueness as towhat theseletters are.
The lettersfoundon the first accusedatthesearch areones that be
accountsforundersection 185 ofthe CriminalProcedureCode. I
• withdrawthe chargeunder section 370, andIconvicthimunder
sections 374 and 102.
The accused appealed.
' Bawa, K.G. (with him D. B. Jayatilleke), for the second accused,appellant.—The second accused was charged with attempting to.commit extortion (under section 374), and with assisting in theconcealment of stolen articles (under section 396). There is clearly
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a misjoinder of charges against the accused. There* is also a mis-joinder of accused parties, as the first accused is charged with theft(under section 370).
There is no evidence to show that the two accused were acting inpursuance of a conspiracy. There is a misjoinder o,f charges andaccused parties. Counsel referred to King v. Mendis1.
H. J. G. Pereira, for the first accused, appellant.—The statementsof the second accused are not admissible in evidence against thefirst accused. Before the statements of one accused can be admittedin evidence against another, there must be evidence outside theevidence objected to show that they were acting in pursuance ofa conspiracy. There is no such evidence here.
Garvin, Acting S.-G., for the respondent.—There is evidence ofconspiracy. The evidence objected to is therefore admissible undersection 10 of the Evidence Ordinance.
There is no misjoinder, as the prosecution has proved a conspiracybetween the accused, and the acts were done in the same transaction.
Cur. adv. vult.
December 3, 1913. Pereira J.—
In this case it is quite clear that the evidence as against the firstaccused is insufficient to justify the conviction. There are threereasons given by the Magistrate for his finding, and all of them areequally unsound. He first points to the statements made by thesecond accused to Mr. de Soysa. It is manifest that these state-ments are no more than mere hearsay as against the first accused.They, are by no means evidence against him. With reference tothem the Solicitor-General cited section 10 of the Evidence Ordinance,,but jbhajb section applies when it is first established aliunde thatthere are reasonable grounds to believe that two or more personshave, conspired together to commit an offence. The statementsrelied on cannot themselves be taken as evidence of the existenceof such reasonable grounds. Such grounds must first be establishedin order to pave the way for the admission of the statements asevidence, and when so admitted they may be additional proof ofthe conspiracy.
In the next place, the Police Magistrate refers to the fact that thesecond accused hafi nothing to do with Mr. de Soysa, while thefirst accused was his clerk. There is no connection between thatfact and the guilt or innocence of the first accused.
The third reason given by the Magistrate is that the first accused'suncle was watching at the gate of Mr. de Soysa’s premises on the<lay on which the second accused went in there. There is no reasonto suppose that the uncle went there in conspiracy with the firstaccused any more than in conspiracy with the second.^
1 {1913) 16 N. L. R. 262.
191ft
Paris v.JSUva
1918.
Pbbbtra J.
Peris v.Silva
( 142 )
The Solicitor-General himself was not impressed by the reasonsgiven by the. Magistrate/ but he referred me to the evidence of thewitness Francis. That evidence does not establish any connectionwhatever between the first accused and the second accused*-nbr isit clear that the letters referredto by Francis are identical: withthose referred to by the second accused at his interview with Mr. de
On behalf of the second accused, it was urged that there has beena misjoinder of charges and of accused parties. The question ofmisjoinder has, of course, to be looked at in the light of the case thatthe prosecution presented to the Court and endeavoured to" establish.The attitude of the prosecution was that the two accused wereacting in conspiracy with each other, and that the acts forming thesubject of the different charges were acts in the course of onetransaction, the. transaction being the committing of extortion,and for that purpose stealing certain letters belonging to Mr. deSoysa, and holding out threats to use those letters to his injury*The mere fact that the prosecution failed to establish its case tothe satisfaction of the Court as regards some of the charges, or asregards any one of the accused, is not evidence either of misjoinderof charges or of misjoinder of accused parties..
-*t
The case as against the second accused is clear. He undoubtedlyattempted to extort money from Mr. de Soysa by threats of injuryto him by misusing his letters. True, the threat was that the'-firstaccused would use the letters to the injury of Mr. de Soysa, but thewhole tenor of the conversation between the second accused and.Mr. de Soysa supports the idea that either the second accused wasin conspiracy with the first accused (and here I may observe thatthe fact of lack of evidence to Convict the first accused of conspiracyis no bar to the conviction of the second accused of conspiracy withthe first on evidence admissible as against him, the second accusedonly), or that the use of the first accused’s name was merely a cloakto disguise the act that the sectiiid accused himself was capableof committing and actually intended to commit. Considering thegravity of the offence in the light of the circumstances ‘ disclosed,the sentence on the second accused is, if anything, inadequate, andI would enhance it if the Police Magistrate had jurisdiction toimpose a longer term of imprisonment.* I
I set aside the conviction of the first accused and acquit him.I affirm the conviction and sentence in the case of the secondaccused.
conviction of first accused set aside,conviction of second accused affirmed.