The learned High Court Judge has erred and grievously misdirectedhimself in arriving at this finding for the reason adduced by himand he has exactly done what was very correctly deprecated andfrowned upon by a Court in the American case of Thompson v.Churctt31 where the judge succinctly remarked:
"The business of the Court is to try the case and not theman for very bad men (prone to certain dispositions, propensitiesand tendencies) may very well have righteous causes."
It was no business of the learned High Court Judge to avoidtrying the issue that directly arose before him. In view of the diverseassertions of Mangalika and the accused, he had to try that issuedirectly. He cannot adjudicate on that issue by relying on earlier
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transactions to which the accused had become a party because theywould only disclose a certain disposition, propensity or a tendencyon the part of the accused person – Res inter alios actae nonnocet. The learned High Court Judge has overlooked this fundamentalprinciple in the law of evidence and has acted on earlier transactionsin which the accused was involved which manifest bad character ofthe accused person which was wholly inadmissible in law, as theaccused has not put his character in issue at the particulartrial – vide observations of Justice Ennis in King v. Wijesinghe (supra)to the effect that :
"there was no question of accident or intention and that there
was nothing suggested to call for any evidence in rebuttal . . .
They are merely evidence of bad character of the accused which
is highly prejudicial to his defence."
The controverted issue before him was whether the acceptanceof money was for the performance of religious rituals and vows orwhether it was an acceptance of an illegal gratification for therelease of the virtual complainant's husband from detention byinterviewing the police officers and the officers attached to the JayalathCommittee in the Ministry of National Security. The Judge wascalled upon to decide and adjudicate on this issue on the merits ofthe cases presented. It was his business to try these contentiousissues which arose in the case and not to decide that issue by tryingthe man by having regard to his propensities, inclinations andtendencies disclosed upon an entirely unrelated transaction. Hehas grievously erred in not trying the case but trying the man as wasremarked by the American Judge in Thompson v. Church (supra). Inwhat is described as the locus classicus this principle was enunciated.Lord Herschel in Makin v. Attorney-General for New South Walesfi*'remarked succinctly thus: “It is undoubtedly not competent for theprosecution to adduce evidence to show that the accused has beenguilty of criminal acts other than those covered by the indictment forthe purpose of leading to the conclusion that the accused is a person
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(Jayasuriya, J.)
likely from his criminal conduct or character to have commitedthe offence for which he is being tried". The prosecution in thiscase had to establish that in this particular transaction the accusedaccepted the money as an illegal gratification to influence theauthorities concerned and thereby secure the release of the virtualcomplainant's husband. It is not competent for the prosecution tomerely establish that in another unconnected transaction he hadaccepted a payment of money to obtain the release of a detenueby interviewing police officers and members of the JayalathCommittee. If the prosecution seeks to pursue the latter course ofaction, it is illegally relying on the accused's general propensity,inclination and tendency to commit similar acts for the express purposeof inferring that he committed the particular unlawful act, which is thesubject-matter of the charge.
Section 54 of the Evidence Ordinance states that in criminalproceedings, the fact that the accused person has a bad characteris irrelevant unless there has been evidence given that he has a goodcharacter. Section 52 of the Evidence Ordinance in relation to civilcases sets out the corollary rule that the fact that the character ofany person concerned is such as to render probable or improbableany conduct imputed to him is irrelevant. Thus, the rule of exclusion- Res inter alios actae non nocet and the aforesaid rules excludecharacter evidence emphasizing that a learned trial judge ought notto have resorted to the impugned reasoning to arrive at an adversefinding against an accused. In regard to the particular issue that cameup for adjudication before the trial judge, the two sections of theEvidence Ordinance to which I have adverted to, exemplify the principlethat evidence of a party litigant to commit another collateral act iswholly inadmissible before any Court or tribunal. The rationale behindthis legal principle is that a decision in regard to each transactionshould be ascertained by its own circumstances and not by generalcharacter, propensity, inclination or tendency towards certain conductof the parties. Thus, a party litigant's general character should nothave been put in issue before a Court. It is for this reason that the
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striking pronouncement was echoed in the leading American decisionin Thompson v. Church (supra) where the Court emphasized that –
“the business of the court is to try the case and not the manfor very bad men (prone to certain dispositions, propensities andtendencies) may very well have righteous causes.'
Vide K. Martin Singho v. V. Kularatne and others per Justice F.N. D. Jayasuriya); Vide also the judgment in High Court LabourTribunal Appeal decision in H. F. A. de Zosa v. Ramada Renais-sance Hotel and Trans Asia Hotel Ltd.,*
The rationale behind the two sections of the Evidence Ordinanceto which I have adverted to, is that a party litigant's general characteris usually of no probative value in a contentious dispute. The factsin issue, particularly in regard to a civil dispute, is in regard to anaccusation which involves no moral quality or at any rate the moralquality that may have been present is ignored by the law. In the result,moral character can throw no light on the probability of doing or notdoing an act. Besides, the supporting policy of the law is equallycogent and effective, to shut out evidence of propensity, tendencyand general character. Adduction of such evidence generates undueprejudice, unfair surprise and widespread confusion of side issuesand the main contentious controversy and the fact in issue wouldbe clouded and overlooked in a trial of a great multitude ofminor and trivial side issues. Vide Wigmore on Evidence, section 64.
It is with regret that I hold that the learned trial judge has indulgedin this case in such faulty and erroneous reasoning in arrivingat a decision adverse to the accused in regard to the highlycontroverted fact in issue which arose on the divergent assertions of
*HC LT appeal No. 664/95 LT 1/48/92 HCM 4.10.94 per F.N.D. Jayasuriya.
Ratnapura Vijitha Nanda Thera v. The Attorney-General
(Jayasuriya, J.)
the virtual complainant and the accused. In view of this grievouserror and grave misdirection on the part of the trial judge andthe faulty reasoning adopted by him, his findings, convictions andsentences have necessarily to be set aside. Learned state counselhas referred this Court to the evidence given by Ranjani Jayaratneand has contended that the interest of justice would demand arehearing of this case. In the circumstances, we set aside thefindings, convictions and sentences imposed by the trial judgeand direct that a retrial be held before the High Court Judgeof Colombo on an indictment which would be carefully drawn upand drafted by the Attorney-General's Department.
Learned State Counsel argued that the oral evidence givenby witness Sadiris Kankanage Jinasena who was the Secretaryof the Jayalath Committee and the contents of the documentsmarked P3 would alternatively be relevant and admissible interms of section 11 of the Evidence Ordinance, in that suchevidence by themselves or in connection with other facte, makethe existence or non-existence of any fact in issue or relevantfact highly probable. In Kanapathipillai v. Queer/61 Justice Gratiaen,having concluded that the oral evidence of a tracker-trainer, in regardto the behaviour of a police tracker dog trained in the detection ofcrime would not come within the definition of a science" andexpert opinion evidence under section 45 of the Evidence Ordinance,nevertheless, proceeded to consider whether such evidence wouldbe rendered admissible and relevant under section 11 (b) of theEvidence Ordinance on a similar contention made by the CrownCounsel in that case. We hold that the submission of learned seniorstate counsel upon this appeal and the submissions of the CrownCounsel in the appeal which came up before Justice Gratiaen areboth misconceived and untenable in law. For Sir James FritzgeraldStephen, who is the author of the Evidence Ordinance, in his speechintroducing the Evidence Ordinance before the Indian legislature (whichspeech has also been published as "The Introduction to the EvidenceOrdinance and as Judicial Principles relating to the Law of Evidence")
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has explained that section 11 has been expressed in very widelanguage but that it was not intended to mean that any and everyfact which by a chain of reasoning may be shown to have a bearing,however remote, on any fact in issue or relevant fact is relevant; sucha view would do away with the theory of relevancy as propoundedin the earlier sections and bring in a mass of collateral facts creatingconfusion, embarrassment and prejudice. Hence, Stephen commentsthat though the terms of section 11 are wide, they are controlled bythe provisions regarding relevancy contained in the other sectionsof the Ordinance and the fact relied on must be proved accordingto the provisions of the Evidence Ordinance. Thus, according toStephen, before a fact can be relevant under section 11, it mustbe shown that it is admissible. In fact, Stephen states though heenacted section 11 in this wide form, he intended the section tobe read subject to a proviso postulating and manifesting admissibilitythough he failed to specifically state so in this statute. A proviso tothe following effect – "No statement shall be regarded as renderingthe matter stated highly probable within the meaning of the sectionunless it is declared to be a relevant fact under some other sectionof the Act" – Stephen – Introduction – Pages 160-161.
The views expressed by Stephen in his booklet were followed inthe decision in Sevugan Chettiar and others v. Raja SrimathuDoresinghanrF1 Justice Varadachariya remarked in this context. "Itseems to us that section 11 must be read subject to the otherprovisions of the Act and that statement not satisfying' the conditionslaid down in section 32 cannot be admitted merely on the groundthat, if admitted, it may probablise or improbablise a fact in issue orrelevant fact." In the decision in Munna Lai v. Kameshari Datfe) at113, 115 two judges of the Indian Court (Misra, J. and Pullen, J.)stressed and emphasized that before a fact can be considered to berelevant, under section 11 of the Evidence Act, It. must be shown thatit is admissible; it would be absurd to hold that every fact which evenif it is inadmissible and irrelevant, would be admissible under section11. If a particular disposition could not be admitted under section 32
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it could not be held to be admissible under section 11." Again, inAmbika Charart Kundu v. Kumud Mohun Chaudhur/S) at 893 JusticeMukherjee at page 895 remarked: "As a general rule section 11 iscontrolled by section 32 of the Evidence Ordinance when the evidenceconsists of statements of persons who are dead". These decisionshave followed the views expressed by Stephen the framer of theOrdinance when the author remarked thus: "It may possibly be arguedthat the effect of the second paragraph of sectipn 11 would be toadmit proof of such facts as these (viz statements as to facts bypersons not called as witnesses; Transactions similar to but uncon-nected with the fact in issue: Opinions formed by persons as to factsin issue or relevant facts) . . . This was not the intention of the sectionas is shown by the elaborate provisions in the following part ofchapter 2, sections 32-39 . . . The meaning of the sectionwould have been more fully expressed if words to the followingeffect had been added to it : “No statement shall be regardedas rendering the matter stated highly probable within the meaningof the section unless it is declared to be a relevant fact undersome other section of this Act". Vide Stephen's Introduction to theEvidence Act pages 160 to 161.
Thus, the evidence which was sought to be admitted on thealternative ground before Justice Gratiaen was evidence which wasclearly irrelevant and inadmissible in terms of section 45 of theEvidence Ordinance. Therefore, such evidence cannot be admittedunder section 11 (b) of the Evidence Ordinance. Likewise, rejectingthe learned senior state counsel's submission, we hold that the oralevidence of the said member of the Jayalath Committee and theadduction in evidence of P3 which related to a similar transactionunconnected with and which manifested fact in issue, the badcharacter of the accused and which evidence was excluded bythe principle Res inter alios actae non nocet, cannot be renderedrelevant and admissible under section 11 (b) of the EvidenceOrdinance for the multitude of reasons spelt out in this judgmentand having regard to the principles laid down by Stephen which
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have been followed in the aforesaid Indian cases. Therefore, wehold that the aforesaid evidence is not relevant under section 11 (b)and its admission prejudiced the case of the accused-appellant.In the result, we affirm our order upon this appeal which hasbeen already set out in the preceding part of this judgment. Theappeal is allowed. The findings, convictions and sentences imposedby the High Court Judge are set aside but a retrial is ordered.
DE SILVA, J. – I agree.Appeal allowed.
Retrial ordered.