012-NLR-NLR-V-75-R.-G.-MOSES-Appellant-and-THE-QUEEN-Respondent.pdf
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LORD HODSON—Moats v. The Queen
[Privy Council]
1971 Present: Viscount Dllhorne, Lord Hodson, Lord Simon ol Glalsdale,Lord Cross oi Chelsea and Lord Kllbrandon
R. G. MOSES, Appellant, and THE QUEEN, RespondentPrivy Council Appeal 13 of 1969S. O. 3/68 (Bribery)—D. C. Colombo, 29/B
Evidence—Oharge of bribery—Previous conviction— Inadmissibility—Participants inoffence—Weight of their evidence —Courts Ordinance [Cap. 8), 8. 36-—CriminalProcedure Code [Cap. 20), e. 425—Evidence Ordinance, s. 54—Bribery Act[Cap. 26), ss. 20, 79 [1).
The accused-appellant was charged with an offence punishable under section20 of the Bribery Act. The trial Judge admitted in evidence a previousconviction of the appellant for obtaining money by false pretences and reliedon this previous conviction'in convicting him on the bribery charge. TheCrown conceded that the cross-examination of the appellant on the previousconviction should not have been permitted but submitted that notwithstandingthis error of the trial Judge the appeal should be dismissed.
Held, that the conviction of the appellant must be quashed on the groundthat the evidence of the previous conviction, which was inadmissible aooordingto section 64 of the Evidence Ordinance, had been taken into account in thetrial Judge's judgment and was in a high degree prejudicial to the appellant.In such a case the substantial question is whether or not the accused has beendeprived of a fair trial.
Held further, that it was at least doubtful in the present ease whether thequality of the prosecution witnesses was properly estimated by the trial Judge.If bribery had been established they would have been involved in it asparticipants and there was nothing in the Bribery Act, section 79 (1), whiohof itself enhanced their credibility.
Appeal, with special leave, from a judgment of the Supreme Court.Eugene Cotran, for the accused-appellant.
Bichard Du Cann, for the respondent.
Cur. adv. vult.
October 27, 1971. [Delivered by Lord Hodson]—
This is an appeal by special leave from the judgment and order of theSupreme Court of Ceylon dated 23rd January 1969 dismissing, withoutgiving reasons, the appeal of. the appellant Rajamuni Gnanamuttu Mosesagainst his conviction by the District Court, Colombo, on a charge ofbribery.
. He was sentenced to three years’ rigorous imprisonment and in additiona fine of Rs. 500/- was imposed with, in default of payment, six months’rigorous imprisonment.
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LORD HODSOJf—Moses v. The Queen
The main ground of this appeal is that the trial judge wrongly admittedin evidence a previous conviction of the appellant for obtaining moneyby false pretences and wrongly relied on this previous conviction inconvicting him on the bribery charge.
The charge was contained in ap.indictment dated 27th October 1967,nearly eight years after the bribe was alleged to have been taken, andreads as follows :
“ That on or about the 3rd day of December, 1959, at Kalubowila,in the division of Colombo, within the jurisdictioin of this Court,you did accept a gratification of Its. 500/- from MagammanaUggallage Thomas Singho as an inducement for Procuring forUggallage Kumatheris employment in the Food Control Departmentand that you are thereby guilty of an offence punishable underSection 20 of the Bribery Act.”
The Crown concedes that the cross-examination of the appellant onthe previous conviction should not have been permitted but submits thatnotwithstanding this error of the trial judge the appeal should bedismissed.
The trial was held in the usual manner before a District Judge sittingalone without a jury and consideration has to be given to the questionwhether the admission of this evidence having regard to the language ofthe District Judge’s judgment upon this matter was to quote from the caseof Ibrahim v. The King1 [1914] A.C. 599 at 615 “ something which . . .deprives the accused of the substance of fair trial and the protection ofthe law As was stated in the judgment of the Board delivered byLord Normand in the case of Lejzor Teper v. The Queen2 [1952] A.C. 450at page 491—“It is a principle of the proceedings of the Board thatit is for the appellant in a criminal appeal to satisfy the Board that areal miscarriage of justice has occurred.” In Teper's case there was ajury and the situation differs in such a case as the present in this respect.A judge may notwithstanding the wrongful admission of evidence makeit plain that he has ignored it whereas the jury’s reasons for arriving ata verdict are not given.
" The relevant statutory provision in Ceylon is section 36 of the CourtsOrdinance, Chapter 6, which provides :
“ The appellate jurisdiction of the Supreme Court shall beordinarily exercised only at Colombo. Subject to the provisions in…that behalf in the Criminal Procedure Code or any enactmentamending the same contained, such jurisdiction shall extend to thecorrection of jail errors,in fact or in law which shall be committedby "Shy. Judge of the Supreme Court sitting alone as hereinafterprovided, to the correction of all errors in fact or in law whichshall be committed by any District Court, to the correction of all
''i
1 (1014) A. C. 699 at 616.'» (196i) A. O. 480 at 491. .
LORD HODSON—Mosea v. The Queen
123
errors in fact or in law which shall be committed by any Court ofRequests in any final judgment or any order having the effect of afinal judgment, and to the correction of all errors in fact or in lawcommitted by any Magistrate’s Court or by the Court of anyMunicipal Magistrate. But no judgment, sentence, or orderpronounced by any court shall on appeal or revision be reversed,altered, or amended on account of any error, defect, or irregularitywhich ahalUfnot have prejudiced the substantial right3 of eitherparty.”
The last sentence is worded in such a way as to indicate that whenthere is error, defect or irregularity it has to be shown that they havenot prejudiced the substantial rights of either party. In other Statutesdifferent language is used, cf. section 425 of the Criminal ProcedureCode : Chapter 20, where it is laid down that no judgment 'shall bereversed on account of any errors in the judgment “ unless such error,omission, irregularity, or want has occasioned a failure of justice. ”
Their Lordships do not however consider that there is any questionof burden of proof involved in such cases. The substantial question iswhether or not the accused has been deprived of a fair trial. Referringagain to Teper's case the following passage which appears on page 492is relevant :
“ Their Lordships have therefore in the end to decide whether theappellant has shown that the improper admission of the hearsayevidence of identification was so .prejudicial to the appellant, in acase where the rest of the evidence was weak, that the proceedingsas a whole have not resulted in a fair trial. The test is whether ona fair consideration of the whole proceedings the Board must holdthat there is a probability that the improper admission of hearsayevidence turned the scale against the appellant. ”
It is useful to see how comparable cases have been dealt with in Ceylon.
In The King v. Perera1 (1941) 42 N.L.R. 526 on appeal from a DistrictJudg&^to the Supreme Court the conviction was upheld because therewas nothing to indicate that evidence of bad character of the accusedwrongly admitted at the trial, influenced the District Judge in convictingd^m. An opposite conclusion was reached by Gratiaen J. on appeal froma judgment of the Magistrate’s Court in Peter Sirigho v. Werapitiya2 (1953)
a~_
55 N.L.R. page 155. He held that where a trial judge haB jpermittedhimself through an improper appreciation of the law to allow evidenceto be led which is of such character as to prejudice.the chances of afair trial on the real issues in the case, improper reception of theevidence is fatal to the conviction of the accused, although the accusedhad been tried not by lay jurors but by a Magistrate learned in the law.
1 {1941) 42 N. L. B. 526.» (1953) 55 N. L. R. 155.
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LORD HODSON—Moses v. The Queen
The relevant statutory provision in such cases is section 54 of theEvidence Ordinance which provides :
“ In criminal proceedings the fact that the accused person has abad character is irrelevant, unless evidence has been given that hehas a good character, in which case it becomes relevant.”
In the instant case the prosecution said that a man named Kumatheriswas looking for employment as a clerk and made arrangements withsome other witnesses for the prosecution which culminated in a meetingon 3rd December in Colombo when Thomas Singho, father ofKumatheris, also a witness, paid Rs. 500/- to the appellant in the presenceof his son and two other people, Don David and one Gunapala. Theappellant is then said to have reiterated the promise he had previouslygiven to secure employment for Kumatheris within a month, otherwiseto return the money. The appellant gave Singho a receipt for theRs. 600/- in the form of a promissory note signed by him and witnessedby two witnesses.
The appellant, it was said, failed to obtain employment for Kumatherisand on 17th and 29th December 1959 wrote letters to Don David whichthe prosecution relied upon as referring to the repayment of the moneyand to the delay in “ finalising the. application ” as meaning theapplication for employment of Kumatheris which the appellant wasarranging.
There was a complete conflict of evidence. The appellant, whoconducted his case in person, denied the allegation that he had takenthe money as a bribe to obtain a job for Kumatheris and maintainedthat the whole money dealing in which he had engaged was a loantransaction.
During his cross-examination counsel sought to question him on aprevious conviction of falsely representing to one Rosalin Kariyapperumathat he would find her a job if she gave him Rs. 500/-.
The questioning was as follows :
“ A. I know a lady called Rosalin Kariyapperuma. I haveborrowed money from her also. I did not pay that money toher. She took me to Court. I have borrowed money from somany. – I did not promise to find out a job for RosalinKariyapperuma, and take the money.
(At thiB stage Mr. Adv. Wickremanayake, Crown Counsel,moves to put to the witness, certain factB which will provesystem, and in consequenoe his state of mind. t
I allow the application.
Sgd. C. V. Udalagama.
A. D. J. 21.2.68)
LORD HODSON—Moats o. The Queen
IBS
Q.You said you did not cheat Rosalin Kariyappenrma ?
YeB.
Q.You were charged and convicted in M.C. Gampaha, in ChaeNo. 88081 ?
A. I was convicted.
Q. You were charged with falsely representing to RosalinKariyapperuma that you will find a job for her and induced her
to give Rb. 500/-?
A. Yob.
Q. You were found guilty and sentenced to 4 months’ rigorouB
imprisonment ?
A. Yes. I appealed and the appeal was dismissed.
Q. You produced a writing given by you and you said it was aloan ?
A. Yea.
Q. I suggest to you that you took a gratification from Thomas Singhoand not a loan ?
A. I borrowed a loan.”
The District Judge having reviewed the evidence and having indicatedmore than once that he disbelieved the appellant’s evidence concluded bysaying:
“ It appears that the accused on an earlier occasion too hadpromised one Rosalin Kariyapperuma a job and obtained money on apromissory note in similar circumstances. He admitted that he wascharged in M.C. Gampaha case No. 88081 with falsely representing toRosalin Kariyapperuma that he would find a job for her and inducedher to give him Rs.500/- and was convicted and sentenced to fourmonths’ rigorous imprisonment. I disbelieve the accused and rejecthis defence.
For the above reasons I find the accused guilty of the charge.”
It is unnecessary to consider what would have been required toestablish a system. No system was in fact proved but the last paragraphof the District Judge’s judgment shows clearly that he took into accountthe inadmissible evidence relating to Rosalin Kariyapperuma.
Their Lordships are of opinion that the conviction of the appellant mustbe quashed upon this ground alone. A perusal of the judgment does notenable them to conclude that the District Judge did not take theinadmissible evidence into account. Having wrongly admitted. it hBreferred to it in his judgment as part of the foundation for his conclusionthat the appellant was guilty. It cannot be asserted that he disregardedthe evidence. On the contrary he referred to the appellant having done'the same thing on another occasion as one of the reasons for rejectinghis evidence. The appellant who was unrepresented was never asked
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Suntharalingam v. The Attorney-General
any questions about the meaning of the two letters to Don David by theprosecuting counsel or by the Court. Nevertheless the judge said thatthey gave the lie to his defence. Finally it is at least doubtful whetherthe quality of the prosecution witnesses was properly estimated by theDistrict Judge. If bribery had been established they would have beeninvolved in it as participants and there is nothing in the Bribery Actsection 79 (1) whioh of itself enhances their credibility.
Their Lordships are satisfied that the admission of the RosalinKariyapperuma-evidence was in a high degree prejudicial to the appellantand for this reason alone, apart from the additional reasons to which theyhave referred, they have humbly advised Her Majesty that the appealshould be allowed.
Appeal allowed.