POULIER v. ABEYGUNAWARDENE

088-NLR-NLR-V-41-POULIER-v.-ABEYGUNAWARDENE.pdf


CANNON J.—Poulier v. Abeygunawardene.
347
1940Present: Cannon J.
POULIER v. ABEYGUNAWARDENE.
806—M. C. Galle, 23,242.
Confession—Statement made to Assistant Government Agent—Accused broughtin custody of Police—Confession inadmissible—Evidence Ordinance,ss. 26 and 167 (Cap. 11).
The accused was produced by an Inspector of Police before anAssistant Government Agent in his office. The latter sent the Inspectoroutside and asked one of the officers at the Kachcheri and another personto be present. The Assistant Government Agent then asked the accusedif he wished to make a statement, pointing out that there was no need tomake a statement and there was no offer, threat or inducement made tohim. The accused then made a confession. The accused was thereuponhanded back to the custody of the Police.
Held, that the confession was inadmissible under section 26 of theEvidence Ordinance.
PPEAL from a conviction by the Magistrate of Galle.
N. E. Weerasooria, K.C. (with him E. B. Wickramanayake), foraccused, appellant.
H. T. Gunasekera, Crown Counsel, for the Attorney-General.
April 23, 1940. Cannon J.—
Section 26 of the Evidence Ordinance provides as follows : —“ Noconfession made by any person whilst he is in the custody of a PoliceOfficer, unless it be made in the immediate presence of a Magistrate, shallbe proved as against the person.” In the case before the Court aconfession of guilt (P 14) by the accused was admitted as evidence and heappeals under that section on the ground that the confession was madewhilst he was in the custody of the Police. There was no Magistratepresent acting as Magistrate and that point does not arise.
The first question then to consider was whether this accused was in thecustody of the Police at the time he made his confession. Mr. Weera-sooria for the appellant has submitted that he was and it is a necessarysubmission, being the basis of the appeal, and Mr. Gunasekera for theAttorney-General contends that he was not. To decide whether he wasin custody or not, one must look at the record. Two days before thissubmission was made, according to the evidence for the prosecution, theaccused wrote a letter to the President of the Village Tribunal in which headmitted his guilt (P 3). The President’s evidence at marginal page 12 ofthe record reads as follows : —
“The Government Agent questioned me about the defalcation. I
showed him the letter P 3 and the other papers and explained to himwhat had happened. He took the papers into custody and asked theGalle Police through the Nagoda Police to take steps in the matter. ”
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CANNON J.—Pottlier v. Abeygunawardene.
The Government Agent’s evidence at page 19 of the record leads :—
“ I handed the file to Mr. Hingley, Assistant Government Agent.
.The Police arrested the accused, and Mr. Hingley recorded the state-ment of the accused.”
At page 22 of the record Mr. Hingley says this : —
“Mr. Rogerson held an inquiry into a suspected case of defalcationat the Nagoda Village Tribunal. This accused was produced before methe same day by the Inspector of Police in my office. I sent theInspector outside and I asked one of the officers of the Kachcheri to bepresent as a witness. I believe that person was the Extra OfficeAssistant, Mr. Kanapathipillai. I also called in Mr. W. H. Perera to bepresent. I then asked this accused if he wished to make a statement.
I pointed out to him that there was no need to make a statement andI made it clear to him that I was making no offers, threats orinducements.”
And in cross-examination this witness says at marginal page 25 -—
“ The accused was produced before me in Police custody and givenback to the Police after the statement was made to me.”
That is the evidence of the witnesses independently of the accused—witnesses called for the prosecution. The accused himself gave evidenceand he says at marginal page 96 this ; —
“ On January 13, 1939, a Sub-Inspector of Police and the AssistantSuperintendent of Police came and brought me to the Kachcheri. Iwas questioned by Mr. Hingley. The Attapattu Mudaliyar and theSub-Inspector of Police only were present. The Office Assistant wasalso there. The Assistant Superintendent of Police was there. Fromthe tame I left my house I was in the custody of the Police. ”
At page 97 he says this: —
“ After the inquiry I was removed to the Police Station and thereI was bailed out. I then realized I was on a criminal charge. ”
The Magistrate himself in his judgment says at marginal page 111 of therecord : —
“ On January 13, 1938, the Government Agent visited Nagoda forelecting the Chairman of the Nagoda Village Committee. The Presidentwas questioned by him and he then showed the letter P 3 sent by theaccused to him. The Government Agent put the Police on the track ofthe accused and he was produced before the Assistant GovernmentAgent, then Mr. Hingley.”
This evidence tends to show that the witnesses were under theimpression that the accused was detained by the Police. Mr. Gunasekerain support of his submission that the accused was not in Police-custody atthe time of the confession cited the case of Dow v. Appuhamy In thatcase a- Policeman had seen a servant in suspicious circumstances with abottle of oil and so he took the servant to his master and the result wasthat the servant confessed to stealing this bottle of oil. The master
1 (i&99) 1 Thaenbyah'a Reports, p. 72.
CANNON J.—Poulier v. Abeyffunawardene.349
thereupon told the Police to deal with the servant according to law.The point now under consideration arose, and the Judge, on appeal, heldthat the servant was not in custody until the master had told the Police• to deal with him according to law.
I should be unwilling to adopt .that reasoning without further argument.But I cannot decide this case on that authority for the reason that thereis no definite evidence as to when the accused was charged—whetherbefore or after he was taken by the Police to the Assistant GovernmentAgent. One has to remember the extracts I have read, especially thatwhich states that the Government Agent took the papers and asked thePolice to take steps in'the matter ; and also the Magistrate’s remarks thatthe Government Agent put the Police on the track of the accused and hewas produced before the Government Agent. I hold that the accusedwas in the custody of the Police when he made the confession (P 14) andthat the confession was therefore not admissible in evidence against theaccused under section 26.
Then it is argued for the Crown that assuming he was in custody, it wasnot a lawful custody. There is no evidence as to whether there was anywarrant but it seems to me that whether it was a lawful or an unlaw-ful arrest is not material to this-issue.
The next point for decision is how does the admission of this evidenceaffect the conviction ? Ddies it go to the root of the matter and make theconviction untenable, or can the conviction be allowed to stand undersection 167 of the Evidence Act which reads :—
“ The improper admission or rejection of evidence shall not be groundof itself for a new trial or reversal of any decisfoft in any case, if it shallappear to the Court before which such objection is raised that, independ-ently of the evidence objected to and admitted, there was sufficientevidence to justify the decision, or that, if the rejected evidence hadbeen received, it ought not to have varied the decision.”
There was evidence of other facts which, if accepted, would, without theconfession, have justified the Magistrate in convicting the accused. Thereis the letter P 3. This is in the handwriting of the accused written onJanuary 11 to the President of the Village Tribunal. If1* reads asfollows : —
“ Sir, I beg to lay before your honour the following facts for your kindand sympathetic consideration, that the fines collected from lastAugust were not yet remitted. I had these monies and I do not knowwhat happened. I tried my level best to procure this amount by takinga loan on mortgaging my land, but it has not yet settled and post-poning from day to day. I did not bring this to your notice so longthinking that I will be able to procure this amount and remit this. AsI have no way of remitting this amount, I beg that you will be pleasedto remit this amount on taking a necessary document from me. I amstill not well to attend to work. Further, I beg of youto see to this and .grant me redress.. I am so sorry and, shame to lopk at your face as I.have done this. act. I again tell, you the ,fact .that I do not know what
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S50CAANON J.—Poulier v. Abeygunawardene.
has happened to this money. All the time I was trying my best to earnthis amount but to my misfortune all failed. Beg that you will help meat this juncture. I am, Sir, Your Obedient Servant.”
The accused’s explanation of that document was that the books hadnot been'kept properly for some months. The Government Agent wasexpected in January and the accused alleged that on this day the President•went to his house and told him that there would probably be a deficiency;that the Government Agent was coming, and asked whether he would-write a letter saying that he was responsible for the deficiency. Theaccused says that he gave that letter to the President on the promise thathe would be saved from trouble. He says that he wrote it at the dictationol the President.
Dealing with this letter, the Magistrate in his judgment says in effectthat that letter alone coupled with the evidence of the President and of theaccused would not have induced him to convict the accused, because, hesays, evidence had been led that the President sometimes had custody ofsome of the fines that were levied in the Court. This is what theMagistrate says on that point : —
“ the prosecution admits that the ultimate responsibility for themoney was with the President, and in point of fact the amount has nowbeen made good by him to the Government Agent. In view of that, ifthe evidence was that of the President and the accused alone it wouldhave become necessary for me at least to give the accused the benefit,of the doubt that would aijise.”
In the confession (P 14) the accused said : —
“ I admit that I spent the money for medical expenses and for homerequirements. I was constantly trying to make up the money I hadspent …. After the President had signed all the papers Iretained them instead of sending in the money.”
1 might mention here .that the Magistrate, when he admitted that■confession in evidence had not the advantage of the objection being putbefore him in the way it has been put before this Court. It was not putbefore him as inadmissible under section 26 of the Evidence Act. TheMagistrate found that the confession was a voluntary one.. If theobjection had been raised 'Under section 26 of the Evidence Ordinance hemight have decided otherwise. I think the most cogent evidence that canbe put before a Tribunal is an admission or a confession. The Magistratetakes that view for he says in effect that this confession, added to P 3,'induced him to-accept P 3. This is how he puts it: —
“ The prosecution admits that the ultimate responsibility for themoney was with the President and in point of fact the amount has nowbeen made good by him to Government. In view of that, if theevidence was that of the President and the accused alone, it would havebecome necessary for me at least to give the accused the benefit of thedoubt that would arise.”
He goes further and says : —
“But ivhen, as here, the letter P 3 is followed up by a confession-.vithin two days of it to another official against whom no such allegation
Gunasekere v. Gunasekere.
331
even can be cast to the Assistant Government Agent, and the retractionwas made only 16 days later, I can come to no other conclusion thanthat the affidavit P 12 was an afterthought.”
P 12 was an affidavit which the accused swore 16 days later, statingthat he had written P 3 at the dictation and persuasion of the President.
I do not think (in view of the passage of the judgment I have just cited)that I can say that the Magistrate would have come to the same conclusionwithout the evidence of the confession.
Now what order should be made ? Section 347 of the CriminalProcedure Code gives power to this Court to send the case back for trial orto commit it for trial. The Crown submits that if the Court holds that theconviction cannot stand because of the admission of'this confession, theCourt has authority ‘to commit the case for trial or retrial on theground that the Magistrate should not have tried the case. An authorityfor that proposition is Silva v. Silpa' where it was held that in a case ofcomplexity or where difficult questions arose, the Magistrate should notassume jurisdiction, but commit for trial! I am not prepared to hold thatthe Magistrate was wrong in assuming jurisdiction.
»
I hold that the confession was made when the prisoner was in the-custody of the Police and it is possible to say that had that been excludedthe Magistrate would have come to the same conclusion.
The conviction is therefore quashed and the accused is discharged.
Conviction quashed.