Republic uf Sri Lanka v. Jayawardenu
1978Present: Pathirana, J., Weeraratne, J., and
Colin-Thome, J .
REPUBLIC OF .SRI LANKA
G. DON F. N. JAYAWARDENA and ANOTHER,Accused-Appellants
S. C. 106-107/75—H. C. Negombo 42/75—M. C. Kanuwana 25042
Evidence Ordinance, sections 17, 21, 30—Criminal Procedure Code section134—Statement by an accused before a Magistrate—Exculpatorystatement—Referred to as a confession by trial Judge andxoitness—Distinction between i“ admission ” and “confession "—Effect of statement being referred to as confession—Whetherstatement could be used against another accused.
Where two accused were charged with committing robbery andmurder, the trial Judge permitted a statement (1*11) made by thesecond accused to the Magistrate ti> be referred to as a confession.He himself referred to it as such in the course of his directions tothe Jury on as many as 84 occasions.
Held: (1) That on an examination of the statement Pll withreference to the provisions of the Evidence Ordinance and the testslaid down in the relevant authorities, it was clear that it was not aconfession but an exculpatory statement its manifest purpose beingto show that the maker was innocent of the crime for which hewas charged.
That therefore, it should not have been referred to as a con-fession. cither by the learned trial Judge or by any witness.
That the reference by the trial Judge himself to the statementPll as a confession when it was in fact not a confession or admis-sion of guilt on the part of the 2nd accused was a misdirection, theeffect of which was highly prejudicial to both accused and deprivedthem of a fair trial.
That it was a misdirection on the part of the trial Judge tohave told the jury that this “confession “ could be used against theother accused.
Cases referred to :.
Anandugnda v. Queen, 64 N.L-R. 73.
Narayana Swami v. Emperor‘ (1939) A.I.R. (P.C.) 47.
King v, Cooray, 27 N.L.R. 267.
A.PPEAL froth a judgment of the High Court, Negombo.
T.B. Weerakoon, for the 1st accused-appellant.
R. S. R. Coomaraswamy, with E. R. S. R. Coomaraswamy(Jnr.), C. P. lllangakoon and R. K. Sv.resli Chandra, for the 2ndaccused-appellant.: M –
C. M. M. Bogollagama, Senior State Counsel, for the State.
I*—A 47191 (79/12)
l’ATHIKAXA, J.—Republic of Sri. Lanka v. J ayawardena
March 28, 1978. Pathirana, J.
By the unanimous verdict of the J ury the two appellants werefound guilty on the two counts in the indictment.
That they did on or about 9.10.72 at Uswetakeiyawa, committhe murder of Kuranage Francis Perera.
In the course of the same transaction they committed
robbery of a wristlet watch, a gold ring and a gold chain with across of the value cf Rs. 745 from the possession of the saidFrancis Perera.^
. On the 1st count they were sentenced to death and on the 2ndcount to 10 years, rigorous imprisonment.
At the conclusion of the argument before us we allowed theappeals against the convictions of both appellants, quashed theconvictions and sentences and ordered a new trial in respect ofboth appellants.
We now give our reasons.
In order to prove the case against the 2nd accused, DharmadasaJayasinghe, the prosecution at the trial relied on a statementmade by him to the Magistrate which was recorded by the latteron 25.10.72 under section 134 of the Criminal Procedure Code.This was referred to in the back of the indictment in the list ofdocuments as “A confession made by the 2nd accused to theMagistrate at the Negombo Magistrate’s Court- ” In the course ofthe trial it was produced by the Magistrate who recorded it andwas marked Pll. We are satisfied that this statement was madevoluntarily to the Magistrate by the 2nd accused and was dulyrecorded by him under section 134 of the Criminal ProcedureCode. The admissibility of Pll as a voluntary statement by the2nd accused to the Magistrate was in fact not challenged beforeus at the argument and we are satisfied that it was madevoluntarily.
The main complaint urged before, us by Mr. E. R. S. R.Coomaraswamy, learned Counsel for the 2nd accused-appellant,was that the statement Pll made by the 2nd accused to theMagistrate, which was recorded by him under section 134 of theCriminal Procedure Code, was permitted by the learned trial"Judge to be referred to as a confession whpi in the submissionof Counsel it was only an exculpatory statement and was by nomeans upon any construction put on its contents a confessionor an admission or acknowledgment of his guilt by the 2ndaccused. The prosecution could have only referred to it as anadmission made by the 2nd accused which suggests an inference
PATHIKANA, J.—Republic of Sri Lanka v. Jayawanlena
Counsel brought to our notiee that in the course of his direc-tions to the Jury the trial Judge referred to Pll as a confessionon as many as 84 occasions. His submission was that Pll was nota confession by reference to its own intrinsic terms- On thecontrary it was an exculpatory statement the benefit of whichthe 2nd accused was entitled to claim before the Jury. Thelearned trial Judge by permitting a prosecution witness, theInspector of Police, to refer to Pll as a confession and the re-ference by the trial Judge himself in his directions to the Juryto Pll as a confession or admission of guilt had the inevitableresult of causing serious prejudice to the 2nd accused-appellantin that the Jury would have been left with a strong' overpower-ing impression in their minds that in Pll the 2nd accused hadmade a confession of his guilt to the Magistrate of the offenceswith which he was charged. Once they accepted the voluntari-ness of the confession the Jury may have been inclined to thinkthat they could act on Pll as a confession in order to find theaccused guilty of the charges preferred against him. LearnedCounsel went on to drive home his contention when he broughtto our notice that in the trial which took two working weeksto conclude and after a charge-to-the-Jury lasting five hours,the Jury which retired at 3.20 p.m.. to consider their verdictreturned at 3.30 p.m., i.e., in 10 minutes with the unanimousverdict of guilty against the appellants on both counts. Counsel’ssubmission was that it may well be that during the short spaceof 10 minutes the Jury may not have considered the vast volumeof evidence led in the case in view of the overpoweringimpression in their minds that the confession alone made bythe 2nd accused was sufficient for them confidently to base theirverdict of guilty against the appellants. Before we deal withthe submissions we shall now set out the facts of the case.
On 9.10. 72. at about 9.30 a. m. Mary Pigera, the widow of thedeceased ICuranage Francis Pergra, saw the deceased, a hiringcar driver, leaving his home in his hiring car Ford Prefect No.EN 3754. He had on him a gold chain with a cross, two gold ringsand a wristlet watch (P2). At Kandana at about 7.30 p.m. on
1972 Reprint, page 220).
as to a fact in issue or a relevant fact and it could have beenproved as such against the 2nd accused under section 21 of the
means “ confession ”. The Composite Glossary published by theOfficial Languages Department gives one of the Sinhala equival-
(See Part 1,
ents of the word “ confession ” as '
Evidence Ordinance. The Sinhgla term
used in the course of the trial in relation to Pll both by thewitness for the prosecution arid the trial Judge. It is not disputed
’ translated into English
that the Sinhala word
PATH [RAXA, ,T.~ -Iic/i'iLlic nj Sri .Lanka r. fai/mi-itnlcu"
the same day the 1st accused, Newton Jayawardene, who camein the hiring car driven by the deceased met the 2nd accusedand asked him to accompany him in the car to go to Bopitiya.Hej got into the car and along with the 1st accused proceeded toBopitiya, the deceased driving the car. The 1st accused askedthe deceased to take the car to a hotel to buy half a bottle ofarrack. The 2nd accused bought the arrack, a bottle of LankaLime, cutlets and cigarettes from the Central Hotel, Bopitiya.At this stage, the witness Ratnayake had identified the twoaccused. The accused and the deceased drank the arrack. The carthen left Bopitiya Junction towards Uswetakeiyawa.
Marcus Rodrigo, the 1st accused’s sister’s husband, had heardthe sound of the horn of a car near the gate of his compoundabout 115 feet from his home at a place called Moda Ela, Usweta-keiyawa between 8.30 p.m. and 9 p.m. on the same night. He saw acar reversing towards the gate and then going forward. Therefollowed a big noise as if the car had knocked against something.The car stopped. He saw two persons coming towards the car.Both wore sarongs and shirts. The engine was switched off andthe lights put out. He heard the doors of the car opened andclosed. He became suspicious and he called .out for some personsin the neighbourhood and when they went towards the car thetwo persons whom he had noticed were, however, not there atthis time. Then he saw a person fallen on the driving seat of thecar and lying bleeding. He complained to the police at 10.45 p.m.The widow who shortly thereafter came on the scene found thegold chain with the cross, the rings and the wristlet watch wornby the deceased missing.
On 10.11.72 at about 5.30 a.m. the 1st accused, his mistressand baby left the home of Prema Jayawardene with whom theywere residing at that time. The 2nd accused later joined them.They went to the house of one Annesley Amarasinghe at Hunu-pitiya, where the 1st accused wanted the gold chain with, thecross sold stating that they have no money t.o go home. Accordingto Annesley the 2nd accused went to a. jeweller at Grand Passand sold the chain with the cross for Rs. 250. The 2nd accusedhad the gold chain around his neck and he removed it and gaveit. The money was given to the 1st accused. .The 1st accused hadalso asked Annesley to take the 2nd accused to have him treatedfor an injury. Annesley took the 2nd accused to a retired hos-pital attendant, Gamage, who applied some medicine on whathe described as a cut injury on the wrist. Annesley also statedthat he saw the 2nd accused wearing a wrislet watch. The 2ndaccused has stated that he desired to exchange that wristletwatch with that of Annesley.
■PATHIRANA, J.—Republic of Sri Lanka v. Jayawardena
On 11. 11. 72 at 5-30 p.m. the 1st accused, his mistress, the babyand the 2nd accused left the place in a taxi. At the Fort Stationthey boarded a train to Trincomalee. On 11.11.72 they went tothe house of a friend of the 1st accused called Joseph Rodrigoat Trincomalee. The 2nd accused was introduced to Joseph asthe brother-in-law of the 1st accused. From there they wentto the house of one Punchi Singho at Killivetti in Mutur Districtsaying that, they have come to Trincomalee on a pilgrimage.They stayed at Punchi Singho’s house for about 5 days. Whileat Punchi Singho’s house the 1st accused told Punchi Singho tosell his wristlet watch as he was in difficulties. Punchi Singhohad arranged to sell the wristlet watch to one Gunapala oncondition that it could be redeemed later. On the 19th they cameto Veyangoda. The 2nd accused surrendered to the police on the19th after coming home. The 1st accused was arrested at avillage called Gomugamuwa in the Kuliyapitiya District aboutCO miles from Kandana on the 30th October at 2.05 p.m.
The evidence of the witnesses relied on by the prosecutionwas mainly circumstantial, but in order to establish the caseagainst (he 2nd accused the prosecution used the statement Pllmade by l.he 2nd accused to the Magistrate to bridge the gapsin the case. For the better appreciation of the submissions madeby the Counsel we would give the English translation of theentirety of the statement which had been recorded by theMaoistrale in Sinhala. The English translation of Pll would readas follows :
*■ I cam? to the Kandana town on the 9th evening. At thattime Newton asked me to wait for a short while to go withhim to Bopitiva. He came in a car and asked me also to getin. W? went in the car to Bopitiya. At Bopitiya Newtonasked the driver to take the car near the tavern to buy halfa bottle of arrack. Newton asked me to buy a half bottle ofarrack for Rs. 5. I bought a half bottle of arrackand gave it lo Newton. The doors of the car were openedand we get down. Newton gave the bottle of arrack and atumbler to the driver and asked him to drink. The driverasked me to get a bite. I bought 4 cutlets and a Lottie ofbarley from a nearby boutique. The driver opened theDottles and poured a drink and drank it. Then he gave thebottle to Newton . Newton had a drink and gave the bottle tome to have a drink. I drank the balance arrack and gavethe empty bottle to a friend who was nearhv and asked h»mto return the bottle to the tavern and get Re. 1. The friendbrought the Re. 1. I went to the boutique andbought 3 cigarettes. The driver, Newton and I lit the
!♦*—a 47ini mim
PATH114ANA, J.—Republic of Sri Lanka V. Jayawardena
cigarettes. Tnen Newton suggested that we go to his brother-• in-iav/'s nouse to bring tne nee ration book. Newton wantedthe car to be stopped near the first gate and the lightsswitched off and said that he would go and bring the riceration book. Then the driver asked did you bring me forthis. As he said that I saw the driver bleeding from thechest. Then I opened the door of the car and got down.Nowton also got down from the car. Newton held me bythe hand. The driver started the car and went near Newton’sbrother-in-law’s house and sounded the horn and reversedthe car and was coming when it hit the coconut tree. ThenNewton went near the car and cut the wires. After thelights were switched pff I saw Newton stabbing the drivertwice with the knife. Newton held me by the hand and saidif you go and talk about this I will kill you also and showedme the knife. Newton tore off the chain that was on thedriver’s neck and the wristlet on the hand. Having takenthose he came with me to the beach. Newton threw the knifeinto the sea. He had another spring knife in his hand. Heasked me to accompany him, otherwise he would kill me.Then we went directly to their house. They brought a bottleof arrack and made me drink it. I fell asleep there itself.Early morning Newton took me also and went to the housefrom where he was to get married. He sent me with a boyfrom that house and asked me to sell the chain which he hadsnatched. We sold it and came back and handed over themoney to Newton. Thereafter Newton went to Trincomaleewith me. We were there for 4 days. While we were thereJoseph Aiya received two letters to say that the Police werelooking out for Newton in connection with a murder. Afterhe received the letters Joseph Aiya asked us to leave theplace. Then Newton took me also and went to Muttur. Westayed at a friend’s place there. While staying there I toldNewton that I cannot stay there and wanted to go back. Heasked me not to go to Kandana. I said that I was going to mymother’s house and came from there. After I returned T metWeerakoon Ralahamy and narrated the incident to. him.That Ralahamy handed me to the Police. This is all I haveto say. ”
The defence of the 1st accused, Newton, who gave evidenceon oath was that on the night of the 9th at about 11 p.m. the2nd accused came to him and told him that he had got intotrouble, got involved with a fight with a police officer andasked him to save him. The 1st accused then said that he wouldtake him awav, that there were some people at Wattala and
VAT l L IK ANA, J.—■Hc.pubtic of Sri Lanka u. Jayawardena
he could go there and stay for two or three days but there wasno money for this purpose. The 2nd accused however agreedto look after the expenditure. They went to Wattala where the2nd accused told him that he did not have money but that hehad brought his wife’s chain which they could pawn and raisesome money. The 1st accused said that in order to save the 2ndaccused he arranged to sell the chain through Annesley at therequest of the 2nd accused. It was sold for Rs. 250. He admittedthat they went to Trincomalea and to Kilivetty. At Kilivctty asthe 2nd accused had no money he pawned his v/ristlet watch. Hedenied any participation in the murder of the deceased, orrobbery of the articles from the deceased.
The 2nd accused also gave evidence on oath and his defencewas substantially on the same lines outlined in the statementlie made to the Magistrate, Pll.
At. the commencement of the trial after the pleas of the accus-ed were recorded and before the trial Judge addressed theJury under section 211 of the Administration of Justice Law,Counsel for the 2nd accused at the trial quite properly soughtclarification from the prosecuting Counsel whether he proposedto use Pll as an admission of the 2nd accused under section17(1) of the Evidence-Ordinance or as a confession against himunder section 17(2). In a commendably precise, short and effec-tive submission, Counsel took up the position that Pll was nota confession or an admission of guilt although it was referredio in the back of the indictment as a “ coniession State Counselwhile conceding iliat Pll could be a statement which is an admis-sion admissible against the 2nd accused under section 17(1)read with section 21 of the Evidence Ordinance, went a stepfurther and stated that Pll was in fact a confession as it wasan admission of guilt. The trial Judge thereupon ruled that heaccepted date Counsel’s position that it was an admission undersection 17(1) and section 21. He also took the view that Pllshould be considered as a confession under section 17(2) of theEvidence Ordinance. The trial Judge-had made it quite evidentthat Pll was a confession when lie stated that section 30 of theEvidence Ordinance applied to Pll. Under section 30 where morepersons than one are tried jointly for the same offence and aconfession made by one of such persons affecting himself andsome other of such persons is proved, the Court shall not take intoconsideration such confession against such other persons. Thelearned trial Judge thereafter permitted the Magistrate who
PATHIRAN A, J.—Republic of Sri Lanka v. Jayawardena
recorded the statement to refer to Fll as a confession. The Inspec-tor of Police who sent the 2nd accused to the Magistrate for thepurpose of recording the statement also referred to PI 1 as a con-fession. As we remarked earlier the trial Judge in the course ofhis directions to the Jury too referred to PI 1 as a confession.
Under section 134(1) of the Criminal Procedure Code theMagistrate has the power to record any statement made to himby any person before the commencement of an inquiry or trial.Section 134 envisages two kinds of statements, non-confessionalstatements and confessional statements. If it is a confessionalstatement the Magistrate will record it only if he is satisfiedupon questioning the person who makes the confession that itwas made voluntarily. Of course, the Magistrate before heproceeds to record a statement under section 134 would naturallyquestion the person who makes the statement to find outwhether it is a confession or not. If it is a confessional statementhe will first satisfy himself that it was a voluntary statementbefore recording it. The more prudent course, however, wouldbe to satisfy himself that the statement is a voluntary statementeven if upon interrogating the person the statement appearsto be non-confessional in character, for the simple reason thatwhile in the process of actually recording the statement it mayeventually turn out ir. the context to be of a confessional nature.Tire Magistrate, however, in this case apparently recorded thestatement of the 2nd accused as a confess:on as this is evidentfrom the questions he had put to the 2nd accused to satisfy himselfthat it was made voluntarily.
The question fdr our consideration is whether Pll is aconfession or admission or acknowledgement of guilt made by the2nd accused to the Magistrate and whether the trial Judge wasentitled to and justified in treating it as a confession in the senseof an acknowledgement of guilt by the 2nd accused.
In order to construe the meaning of the word confession "in section 134 of the Criminal Procedure Code we would thinkthat judicial decisions on the meaning of the word “ confession”as used in contradistinction to the word “ admission ” in theEvidence Ordinance would provide helpful guidelines.
There is an important distinction between the terms “ admis-sion” and “confession” in the Evidence Ordinance. Undersection 17(1) a statement made by a person which suggests an.inference as to any fact in issue or relevant fact is an admission
FATHER AKA, J.—Republic oj Sri Lanka v. Jayawardena
and it may be proved against such person under section 21.Unlike the Indian Evidence Act, our Evidence Ordinance insection 17 (2) defines a confession as follows:
“A confession is an admission made at any time by aperson accused of any offence and suggesting the inferencethat he committed such offence.”
While every confession is necessarily an admission, everyadmission does not necessarily amount to a confession. Wigmoreon Evidence, Vol. 3, 3rd Edition, page 245, section 821, gives auseful definition of the word “ confession ”.
“ 1897, Wolverton, -J., in State v. Porter, 32 Or, 135, 49 Pac.964 : “ We take it that the admission of a fact, or of a bundleof facts, from which guilt is directly deducible, or whichwithin and of themselves import guilt, may be denominateda confession, but not so with1 the admission of a particularact or acts or circumstances which may or may not involveguilt, and which is dependent^for such result upon otherfacts or circumstances to be established. It is not necessarythat there be a declaration of an intent to admit guilt; it issufficient that the facts admitted involve a crime, and theseimport guilt, or, as put by Mr. Wharton, ‘“I am guilty ofthis ” ; and this imports the admission of all the acts cons-tituting guilt. ’ It is necessary, however, that the accusedshould speak with an 'animus confitendi’, or an intentionto speak the truth touching the specific charge of guilt ; andwhen he. with such intention, narrates facts constituting acrime, the guilt becomes matter of inference, a resultantfeature of the narration without an explicit declaration tothat effect. So that we conclude that whenever the state-ments or declarations of the accused, voluntarily made, areof such facts as involve necessarily the commission of acrime, or in themselves constitute a crime, then the factsadmitted import guilt, and such admissions may properlybe denominated confessions. ” .
This passage cited by Wigmore is quoted with the approvalby the Privy Council in Anandagoda v. Queen, 64 N.L.R. 73, towhich we shall refer later.
Wigmore also at the same page cites another decision whichbrings out the distinction between a confession and an admissionas applied in the Criminal Law.
PATHIRANA, J.—Republic of Sri Lanka v. Jay a warden a
. “ 1919, Holloway, J. in State v. Guie, 56 Mont. 435, 186.Pac. 329: “ The distinction between a confession and anadmission, as applied in Criminal Law, is not a technicalrefinement, but based upon the substantive differences of■ the character of the evidence deduced from each. Aconfession is a direct acknowledgment of guilt on the partof the accused and, by the very force of the definition,excludes an a' rssion, which of itself, as applied in CriminalLaw, is a statement by the accused, direct or implied, offacts pertinent to the issue, and tending, in connection withproof of other facts, to prove his guilt, but of itself is insuffi-cient to authorize a conviction
As learned Counsel’s submission in this case is that Pll is anexculpatory statement and not a confession it will be useful torefer to the clarification of this distinction made by the PrivyCouncil in Narayana Swami v. Emperor, (1939) A.I.R. P.C. 47at 52.
“in their Lordships’ view no statement that contains
self exculpatory matter can amount to a confession, if theexculpatory statement is of some fact which if true wouldnegative the offence alleged to be confessed. Moreover, aconfession must either admit in terms the offence, or at anyrate substantially all the facts which constitute the offence.An admission of gravely incriminating fact, even a conclu-sively incriminating fact is not of itself a confession, e.g. anadmission that the accused is the owner of and was in recentpossession of the knife or revolver which caused a deathwith no explanation of any other man’s possession. ”
We do not think that since the Indian Evidence Act does notdefine a “ confession ” while our Evidence Ordinance does soin section 17 (2) by adopting Stephen’s definition of a confessionin Article 22 of the “ Digest of the Law of Evidence ”, this wouldmake any difference to the conclusion we have in our mindsin this case.
Monir in “ Principles and Digest of the Law of Evidence,.” 4*hEdition, Vol. 1, at page 115 after referring to Narayana Swami’scase refers to the distinction between a confession and anadmission.
“ The real point to remember, when distinguishing an ad-mission from a confession, is that the statement alone, anddissociated from the other evidence in the case, has to belooked at to determine whether i. amounts to an admissionof guilt or of substantially all the facts which constitute
PATH IK A N A, J.—ttepublicof Sri Lanku v. J ayaviardena
the offence. If it does, it is a confession ; if it does not, it isnot a confession, if the statement contains an admission ofa fact in issue or relevant fact, but by itself it neither amountsto an acknowledgement of gufft nor an admission of subs-tantially all the facts which constitute the offence, the state-ment is merely an admission and not a confession. ”
We would now refer to the Privy Council decision in Ananda-goda v. Queen (supra). In this case the appellant was foundguilty of murder on 14.3.1954 of a young woman called AdelineViharana. The body of the' deceased, seven.months’,advancedin pregnancy, was found late at night on 14th-March, 1959, nearthe 27th Mile Post on the Anuradhapura-Putialam Road. Tnecase for the prosecution was that the death was caused by amotor car being deliberately driven over her body at least twice.
The prosecution at the trial proved certain admissions madeby the appellant to a police office where he admitted that thedeceased was his mistress for two years and she had a child byhim. She had insisted that she should marry him but he wasputting it off. She was disgracing him and she became unbeara-ble and a nuisance to him. He also admitted that on the 14th hestarted in his car with the deceased for Anuradhapura viaPuttalam. They reached a Muslim hotel at Puttalam towards 8and 9 p.m. On the 15th of March he got a car and came to Anu-radhapura via Puttalam. At about 3 or 3.30 p.ni. on the 15th ofMarch, he said he passed the scene of murder, that is the placewhere the body was. He slowed down and noticed people andpolice officers there. The admissibility of these statements wasobjected to on the ground that they constituted a confession orconfessions within the meaning of section 17 (2) and section 25 ofthe Evidence Ordinance. Their Lordships of the Privy Councilapproved the test adopted by the Court of Criminal Appeal andheld that these statements considered by themselves did notamount to confessions of guilt within the meaning of section 17(2). There was no admission that the appellant was driving thecar at the time of the offence, or that if he was driving the carthat in running over the deceased the appellant was acting“deliberately both of which elements would be necessary toconstitute the crime of murder. Their Lordship approved thefollowing passage from the judgment of Garvin, A.C.J. in Kingv. Cooray, (1926) 27 N.L.R. 267, as setting out the correct view inregard to section 17 of the Evidence Ordinance.
“ The term “ admission ” is 1he genus of which '* confes-sion ” is the species. It is not every statement whichany inference as to any fact in issue or relevant fact whichis a confession, but only a statement made by a person
PATHXRANA, J.—Republic of Sri Lanka v. Jayawardena
accused of an offence whereby he states that he Gomrrnttedthat offence or which suggests not any inference' but theinference that he committed that offence.”
They also cited with approval the passage we have quotedearlier from Wigmore’s Law of Evidence. Their Lordships thenproceeded to lay down the test to distinguish a confession froman admission in the following terms.
“The test whe.her a statement is a confession is an objec-tive one, whether to the mind of a reasonable person readingthe statement at the time and in. the circumstance in whichit was made it can be said to amount to a.statement thatthe accused committed the offence. The statement must belooked at as a whole and it must be considered on its ownterms without reference to extrinsic facts. In .his connectiontheir Lordships consider that the view expressed by Gratiaen,
J.in Seyadu v. King, (1951.) 53 N.L.R. 251 at p. 253,“ Thetest of whether an ‘admission’ amoun s to a ‘confession’within the meaning of section 17 (2) must be decided byreference only to its own intrinsic terms ” is correct. It is notpe:missible in judging whether the statement is a confessionto look at other facts which may not be known at the timeor which may emerge in evidence at the trial. But equallyit is irrelevant to consider whether the accused intended tomake a confession! If the facts in the statement added toge-ther suggest the inference that the accused is guilty of theoffence then it is none the less a confession even althoughthe accused at the same time protes'-s his innocence. ”
Our task, therefore, is to apply the principles laid down in thedecisions we have referred to, in order to. determine whetherPll is a confession. Does Pll,
(al admit in terms the offence or at any rate substantiallyall the facts which constitute the-offence (Narayana Swami’scase), or
contain any direct acknowledgment of guilt on the part ofthe accused (Wigmore), or
contain an admission of a fact or a bundle of facts from. which guilt is directly deducible or which within and of• themselves import guilt (Wigmore), or
to the mind of a reasonable person reading the statementat the time and in the circumstances in which it was made itcould be said to amount to a statement that the accused committedthe offence concirf^red in its own terms without reference toextrinsic facts (Anandagoda’s case), or
X’ATHIICANA, J.—Republic of Sri Lanka v. Jayawardena
suggest the inference and not any inference that theaccused committed the offence. (King v. Cooray), or
(]) by reference 10 its own intrinsic terms is a confession(Seyadu v. Queen), or
(g> by itself sufficient to authorise a conviction (Wigmore)', or
(h) dissociated from other evidence in the- case whether itamounts to an admission of guilt or an admission substan.iallyof all the facts which constitute the offence (Mouir) ?
In our view these tests are relevant and helpful to determinewhether a statement is a confession under section 134 of theCiiminal Procedure Code.
Applying these tests we hold that Pll is not a confession. It isnot an admission or acknowledgment of guilt of the offence forwhich the 2nd accused stood his trial. It is an exculpatory state-ment and its manifest purpose is to show that he was innocentof the crime for which he was charged, namely,-murder androbbery. At most it amounts to an acknowledgment of subordi-nate facts not directly involving guilt. We are accordingly of theview that the learned trial Judge was wrong in ruling that Pllwas a confession and thereafter in permitting the learnedMagistrate who recorded Pll and a police office to refer to Pllas a confession made by the 2nd accused.
The question we have, therefore, to consider is whether theerroneous and unwarranted reference by the trial Judge to thestatement made by the 2nd accused to the Magistrate containedin Pll as a confession or admission of guilt by the 2nd accusedcould have had the effect of seriously prejudicing the minds ofthe Jury giving them the overpowering impression that the 2ndaccused in fact had made a confession or an admission of hisgui’t to the Magistrate when in fact Pll was not a confessionor an admission of guilt.
The Magistrate in his evidence had stated that the 2nd accusedhad informed him that he wanted *to make a confession andthroughout his evidence he has referred to Pll as a confessionmade by the 2nd accused. Inspector Mend:s in h;s evidence sta'edthat he submitted a report to the Magistrate on 21.10.72 andrequested him .to take down the confession the 2nd accused wasprepared to make.
We shall next refer to some of the more crucial out of the 84instances where the trial Judge referred to Pll as a confession inhis directions to the Jury.
PATHTRANA, J.—Republic of Sri Lanka v. JayawnrdciM
After the indictment was read to the Jury the trial Judge incomplying with section 211 of the Administration of Justice Lawin explaining to the Jury the principles of law relevant to thecase, told the Jury that the prosecution expected to produce aconfession of the 2nd accused made to the Magistrate and thatthe confession was only admissible against the 2nd accused andwould not be admissible against the 1st accused. He reiterated,however, that the confession was only admissible against the 2ndaccused. In comp'ying wnh the provisions of section 138(1) ofthe Administration of Justice Law as the 1st accused at thisstage was not represented by Counsel and in explaining theprincipal points of evidence of the prosecution against the 1staccused the trial Judge referred to the 2nd accused’s confessionand quite properly told him that that confession would not beadmissible against him. The implication being that it could beused against the 2nd accused. In the course of his direction hereferred to the fact that the prosecution had no direct evidenceas to the persons who committed the offence of murder but thatthe prosecution was relying on circumstantial evidence. He thenremarked that the prosecution was seeking to establish the caseagainst the 2nd accused by his confession which had been reada number of times in Court. Later in the course of his directionsthe trial Judge referred to Pll as a confession made to theMagistrate as an important item of evidence relied on by theprosecution. He then explained that although it is referred to
dence Ordinance an admission of guilt. He then referred to thepower of the Magistrate under the Criminal Procedure Code totake down a confession or an admission of guilt from an accusedperson and that was what the Magistrate had done as a partof his duty. The Magistrate also had followed the necessary rulesbefore taking down that confession and had administered thenecessary caution to the accused before he took down the con-fession. He cautioned the Jury that this confession was onlyadmissible in evidence if. it was given voluntarily. The trialJudge then went on to explain the meaning of “confession”according to the Evidence Ordinance as “ an admission of guiltWhen the trial Judge read Pll to the Jury in its entirety heagain referred to it as a confession. The trial Judge havingreferred to instances where an admission could amount to aconfession by inference although the person making the admis-sion did not directly confess that he committed the offence askedthe Jury to consider whether Pll by inference was a confessionof guilt, although the 2nd accused did not pointedly state thathe was involved in the crime. Nevertheless, he concluded bytel’ing the Jury to consider that Pll was a confession or admis-sion of guilt and not to use it against the 1st accused. Finally,
(confession) it was according to the Evi-
as a “
PATHfRANA, J.—Republic of Sri Lanka v. Jayawardena
the trial Judge in summarising the evidence against the 2ndaccused under three heads referred to one of them as the confes-sion or an admission of guilt of the 2nd accused.
We are, therefore, satisfied that the manner and circumstancesin which the trial Judge repeatedly referred to Pll as a confes-sion, when in fact it was hot a confession, and his failure toinvite the Jury at any stage in his directions to consider Pll asan exculpatory statement, the benefit of which the 2nd accusedwas entit.ed to in the consideration of his defence, have causedserious prejudice to the 2nd accused and had deprived him ofa fair trial. We are inclined to the view that the consequenceof Pll being referred to as many as 84 times by the trial Judgeas a confession would have virtually had the effect of brain-washing the Jury’s thinking into the belief that the 2nd accusedhad confessed his guilt to the Magistrate in regard to the crimeslor which he was charged. We are also inclined to agree withlearned Counsel’s submission that considering the fact that theJury took only 10 minutes to bring an unanimous verdict of guiltyin respect of two serious charges of murder and robbery in acase which took two working weeks to conclude with the trialJudge’s summing-up lasting 5 hours in a case where the factswere by no means uncomplicated, could be attributed to theJury having been disposed to rest their verdict solely on Pll asa confession made by the 2nd accused without the necessity ofconsidering, sifting and analysing the other evidence in the case.
The next question is how far the reference by the trial Judgeto Pll as a confession by the 2nd accused could have prejudiciallyaffected the 1st accused in the minds of the Jury.
The learned trial Judge told the Jury that the 2nd accused’sconfession Pll could not by itself be used against the 1st accused.Proceeding on the assumption that Pll was confession by the2nd accused he went to say that as the 2nd accused had givenevidence in this case his confession could be used against the1st accused. This direction in our view would have been impec-cable if Pll was in fact a confession and the evidence given bythe 2nd accused on oath in which he adopted his statements inPll was confessional in content. But in the view we have takenthat Pll is not a confession, this was a serious misdirection whichhas prejudiced the 1st accused too. Although in his evidence the2nd accused had adopted what he had stated in Pll he had,however, not in his evidence on oath made any confession oradmission of his guilt. His was an exculpatory defence denyingthat he committed the offences with which he was charred. It.was, therefore, a misdirection on the part of the trial Judgeto have told the Jury that the 2n‘id accused’s confession could
AJaxan'ira v. J ayam'innc
be used against ihe 1st accused. In this situation the Jury maywell have thought that as the 2nd accused in his evidence hadmade a confession incriminating himself and the fac_ that the2nd accused both in Pll and in his evidence on oath incriminatedthe 1st accused, Pll as a confession could be used against the1st accused. We are inclined to think that if .he Jury on thedirections of the trial Judge had considered that Pll was avoluntary confession or admission of guilt made by the 2ndaccused they would have been justified ,o use it against the 1staccused as an item of evidence wish an enhanced credibilityvalue being a voluntary confession.
The reference, therefore, by the trial Judge to Pll, the state-ment made by the 2nd accused to the Magistrate, as a confessionwhen it was in fact not a confession or admission of guilt onthe part of the 2nd accused, was a misdirection, the effect ofwhich was highly prejudicial to both accused and it deprivedthem of a fair trial.
For these reasons we quashed the verdict of the Jury inrespect of both accused-appellants on the two charges on whichthey were found guilty, and we directed a fresh trial in respectof the said charges against both accused-appellants.
Weeraratne, J.—I agree.
Colin-thomEj J.—I agree.