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QUEEN v. AMARIS APPOO.
D. C., Colombo (Criminal), 1,167.
Evidence—Admissibility of a confession—Burden of proof—Inducement.
A statement amounting to a confession is inadmissible in evidenceagainst an accused, unless it be proved affirmatively by the prosecutionthat the statement was not made under the influence of an improperinducement.
The mere fact that the statement was not made in answer to questionsdoes not exclude the possibility of its having been made as the result ofa threat or an exhortation to confess.
npHE facts of the case are stated in the judgment of his Lordship-L the Chief Justice.
Dornhorst, for appellant.
Dias, G.C., for respondent.
23rd October, 1895. Bonser, C.J.—
This is a curious case. The appellant was tindal of a paddaboat, and he and the prosecutor live somewhere near Chilaw.The appellant has been in the habit for a good many years past ofVOL. I.2 E
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IMS. bringing copperah down from the Chilaw District to Colombo for'Bonn, OJ. sale. In August last be brought a boat load of copperah to Colombo.The copperah belonged to a number of persons.
He took thecopperahto Messrs. Fretidenberg’s mills, accompaniedby the owners, and there sold it to Messrs. Freiidenberg. They gavehim a cheque for the whole amount, some Bs. 2,000. He went tothe bank and got it cashed. Then the whole party went back to theboat, which was moored in the river at Grandpass, and dined andslept there on board the boat. In the morning, when they were tohave settled all accounts and each person to have received his share,the appellant getting his commission, the appellant took from hiswaist the key of the box in which the money had been depositedthe night before, unlocked it, and the box was found empty.
There seems to have been some little commotion and excite*4ment about the loss of the money, and some one—it does not appearwho—gave information about it at the Grandpass police station,whereupon the sergeant in charge sent a police officer to the boatto make inquiry. The police officer arrested the appellant andanother man—a boatman—and took them to the Grandpass policestation after searching the boat ineffectually for the missing money.There the owners of the copperah laid a charge against these twomen of criminal misappropriation of the money. The appellantwas then taken to the Kotahena police station, and was searched bya police constable in the presence of a sergeant. A sum of Rs. 160was found tied in a handkerchief round his thigh.
The accused were brought up the next day before the Magis-trate on a report from the police, in which the names of thewitnesses are given, which includes the police officer whosearched the boat and the police officer who searched the appellantat the Kotahena station. Evidence was taken by the Magistrateon the 22nd and 23rd August, and on the 23rd, on the conclusionof the hearing, the case was adjourned to the 27th, and theprosecutor’s proctor put in a further list of witnesses, and thatlist included the name of the police sergeant at the Kotahenastation who was present when the appellant was searched. Hewas called on the 27th, and gave some very important evidence.
He stated that about 10 or 15 minutes after the money hadbeen found on the appellant, and after the appellant had beenlocked up, the appellant told him that he had sent a sum ofRs. 1,000 to his village by one Podi Sinno, and that he had spentRs. 90. He further deposed that the appellant did not make thestatement in answer to any question put by him, but he does notexplain how and under what circumstances the appellant cameto make this statement.
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This witness gave evidence at the trial before the District Judge,and that evidence gives quite a different colour to this allegedconfession. After stating the circumstances of the discovery ofthe money on the person of the appellant, he proceeded thus :—“ On this being discovered the accused voluntarily stated that he“ had sent a £100—no, Be. 1,000—to his country by one Podi Sinno“ and that he had spent Rs. 90.” Now that conveys the impressionthat the appellant was so overcome by a sense of guilt at thediscovery of this money concealed on his person that he at oncemade a clean breast of the whole matter. Of course that is not animprobable story in itself, but it is quite a different account ofthe matter from the account given to the Police Magistrate, andthere is no doubt that the account given to the Police Magistrateis the true one, for the police constable says that about 10 or 15minutes after the man had been locked up he called up thesergeant and had some conversation with him, but that he did nothear what was said. The police sergeant, I should remark, statedthat this constable was present at the time the alleged confessionwas made. Of course, if that confession was really made and wasadmissible in evidence, the District Judge was quite right infinding the appellant guilty. But I feel serious doubt as towhether this alleged confession was properly admissible inevidence. It has been laid down by the English Judges that theonus is on the prosecution to show affirmatively that the state-ment was not made under the influence of an improper inducement.Now we are not told in this case how the man came to make thestatement. All that the police sergeant states is that it was notmade in answer to any question put by him. That does notexclude the possibility of its having been made as the result of athreat or an exhortation to confess.
That being so, I think that this confession was not admissible.Apart from that confession, what evidence is there against theappellant ?
There is the suspicious circumstance that the large sum ofRs. 160 is found concealed on his person. There is the statementmade by the prosecutor Waas that when he woke up in the morningat 6 o’clock the appellant was not found in the boat. But no otherwitness speaks of his absence from the boat, and this witness doesnot say when he returned—and it might be that the appellant hada good explanation to give of his absence. It might have been amomentary absence to obey a call of nature, or it might have beenan absence of some hours. As to that we are left in completeignorance. On the other hand, there is in the man’s favour thefact that he had been employed by these people in carrying on
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1895.their business of bringing down their copperah and selling it for the
Bonbeb, 0J. owners and accounting for the proceeds for many years, and thathe had never before been found in default. It appears that someten persons slept in the boat on the night in question ; and thefact that the key was found in the appellant’s possession, and thathe produced it and opened the box seems to me to a certain extentto tell in his favour. Had he stolen the money himself, onemight have expected that he would have dropped the key over-board and protested that somebody had stolen his key and thusgot at the money.
It appears to me that, apart from the alleged confession, thereis really nothing tangible in the evidence to bring home guilt tothe appellant; and the fact that this confession was not producedtill a late stage of the case renders me somewhat suspicious of itstruth. Taking, therefore, the case as a whole, I think there isgrave doubt as to the guilt of the appellant, and that effect shouldbe given to that doubt by acquitting and discharging him.
I agree, and have nothing to add.
QUEEN v. AMARIS APPOO