103-NLR-NLR-V-24-REX-v.-UKKU-BANDA-et-al.pdf
( 327 )
[Full Bench.]1928.
Preterit : Bertram C.J.t and De Sampayo, Porter, Schneider,
and Garvin JJ.
[Crown Case reserved.]
BEX v. UKKU BANDA et aZ..
3—P. C. KegaUa, 33,011.
Evidence given by an accused which implicates a co-accused—Is evidenceto be taken into account against the latter t Evidence Ordinance,ss. SO and 120.
Evidence given by an accused person on his own behalf whichimplicates a co-accused person can be taken into account as againstthe latter.
Where in a criminal trial two co-accused persons elect not togive evidence, but are content to rely either upon their statementsin the Police Court or upon statements in the dock, the jury shouldbe warned, where such a statement by one prisoner inculpatesthe other, that it* should not be taken into account against him.
Where sworn evidence is in fact given by a co-accused, the properdirection to give to the jury in such cases is that they should bevery careful in acting upon such evidence, in view of the temptationwhich always assails a prisoner to exculpate himself by inculpatinganother, yet, that subject to such warning, they must weigh andconsider evidence so given against another prisoner.
HIS case was reserved for a Bench of five Judges by Bertram
J. The facts are stated by'the Chief Justice as follows: —
-This is a reference made to a Court of five Judges in pursuance ofsection 355 of the Criminal Procedure Code and section 54a of theCourts Ordinance. The charge was a charge of a forgery of a deed,accompanied with other charges of abettingforgery. There were
seven accused, comprising—
(a) The three fictitious vendors;
(5) The two witnesses;
One Dingiri Appu, who gave the instructions for the forged deed;
and
Ukku Banda, an Arachchi, who is said to have organised the
whole affair.
On the prisoners being called upon for their defence, Mr. Raj aratnam,who appeared for one of the witnesses, Ukknwa, called his client, whoadmitted that he had signed as a witness to the deed without knowingthe supposed vendors as he purported to know, but said that he didthis on the invitation and' assurances of Punchirala, the other witness,and Dingiri Appu, the fourth accused. He protested that he did not.
( 328 )
1983.
Rex v. Uk kuBanda
in fact, realize that a fraud was being committed. Ukkuwa wasacquitted. Punchirala, the other witness,' in his turn, gave evidence,and said that he also had no idea that a frand was being committed,and that he went- to the notaiy's office as a witness on the invitation ofthe Arachchi. He also said that hewas stronglypressedto sign bythe
vendees, and that thenotaryhimself assured himthat it-did not matter,
that he falsely asserted that he knew the supposed vendors, inasmuchas the vendees invited him to sign.
When Punchirala had given evid ence – i n-chief, Mr. Rajaratnam, onhehalf of the Arachchi, submitted that there was no occasion for himto cross-examine thewitnesswithregard to statementsinculpatinghis
own client, the Arachchi. I considered this. ' contention, and ruledagainst it. My judgmebt will be found attached to this reference.
In charging the juryI toldthemthatthey must take'intoaccount
the sworn evidence given by any of the accused in the witness box,which inculpated anyof theotheraccused, butwarnedthem thatthey
should be careful before they acted upon such evidence, inasmuch asone of several co-accused was always under the temptation to exculpatehimself by throwing responsibility upon the others. With regard toPunchirala, I said thatif thejuryreallybelieved him, whenhe said
that the notary pressed him to sign, although he knew that Punchiraladid not know the vendors, nndthat thepurchasers alsopressed him to
sign, although, they also knewthat hedid notknowthe persons to
whom they were payingtheir money, theywould also, nodoubt, attach
weight to what he saidagainsttheArachchi. But that iftheydid not
believe him on the first twoof thesematters,theywould probably
disregard his evidence on the third.
The jury found all the accused guilty, except Ukkuwa, and Mr. Raja-ratnam then made a further submission. He submitted that mydirection to the jury was wrong, and that they ought to have been toldthat any evidence given by one accusedperson,for itwas of such a
nature that an inference of his guilt might conceivably be drawn fromit must be regarded as a confession on the authority of Rex v. KaluBanda,* and consequently the jury were precluded from taking it intoconsideration by section 30 of the Evidence Ordinance. Mr. Raja-ratnam did not, I think, specifically argue that the evidence of Punchi-rala against the Arachchi was of this nature, but he suggested that thecombined effect of the decision of the Fall Court in Rex v. Kalu Banda(,supra) and section 30 was such ns to make it doubtful whether anyevidence by one co-accused against another could properly be receivedagainst that other.
While I myself do not entertain any doubt with regard to this matter,yet, in view of the two dicta referred to in my attached judgment, andin view of other dictacited byMr.Rajaratnam, Ithink, with a viewto
the elucidation of thissubject,the case should bereferred to a Courtof
five Judges, aud I refer it accordingly. I may add that I do not thinkthat the jury in giviug their verdict against the Arachchi was in anyway materially influenced by the. evidence of Punchirala against him.The decisive evidenceagainsttheArachchi' was that of one of the
principal owners of the property conveyed, an ex Vidane Arachchi,named Banda. This man testified that he had known the Arachchi foryears, that the Arachchi had stayed with him and that he had stayed atthe' Arachchi’s house,that hehadcollected rentfrom the Arachchiat
(he time when the tatter was lessee of the property for the benefit ofhimself and his co-owners, and that it was quite impossible for him to
1 (1912) 15 N. L. R. 422.
( 329 )
have mistaken for the witness the man who personated him. Inasmuchas it is admitted that the Arachchi saw the parties before the deed wasexecuted, firstly, at Bambukkana, where it was originally intended toexecute the deed, and afterwards on the way to Kegalla, where it wasfinally executed, and that he travelled with the vendors in the bus fromBambukkana to Kegalla, it is clear that, if the evidence of BandaArachchi is to be relied upon, ths Arachchi must have been a party tothe fraud.
T told the jury that all the other points against the Arachchi werecapable of explanation, and that, out for the evidence of Banda Arachchiit would be impossible for them to convict him, and I told them thatthe substantial question for them was whether they were prepared toact on the evidence of Banda, the ex Arachchi.
Similarly, with regard to Pnnchirala, I do not think that the evidenceof the co-accused, Ukkuwa, was what determined the minds of the uryagainst him. He was a nephew of Dingiri Appu, one of the principalaccused, who was obviously one of the originators of the fraud and whoput forward no substantial defence. It seemed impossible to believethat he was not one of the persons originally chosen as a witness. Twowitnesses must have been ready to witness the deed at Bambukkana,but the execution proved impossible, as the notary was absent. Itseems clear that Punchirala had been suborned as a witness from thestart. Nevertheless, it is possible that the evidence of Ukkuwa, whomthe jury acquitted, that Punchirala had invited him"' to be a signatory,may have had some efiect as a make-weight in balancing their mindsagainst him.
With regard to – the prisoner, Dingiri Appu, who is also effected byevidence of a co-accused, – the case against him is so overwhelmingthat the evidence of., the co-accused cannot possibly have effected theresult.
C. S. Rajaratnam (with him Weerasuriya), for the accused.—Theevidence of Punchirala, the co-accused, should not be tiaken intoconsideration against the first accused. Section 120 (4) of theEvidence Ordinance, 1895, lays down the law dealing with thecompetency of accused persons to give evidence. The section limitsthe perpose for which an accused person can give evidence in hisown behalf.
[Garvin J.—The section merely removes the disability underwhich accused persons laboured prior to the Ordinance.]
[De Sampayo J.— The words “in his own behalf’ ’ may meanthat an accused person may call himself, but that another accusedmay not'call him.]
The section must be read to mean that an accused is a competentwitness only on his own behalf. The words “ in his own behalfhave been inserted in the section with an object. And they cannotbe ignored. [Bertram C.J.—The accused can be called only onhis own application.]
If there is no evidence at the close of the prosecution, then the-accused, against whom there is no evidence, is entitled to an acquittal.It would not be open to the prosecution to ask the' Judge to make
1988.
Rex v. UkJntBanda
( 330 )
1988.
R**v.~Ukku
Banda
no order as to the acquittal till the other accused has given evidenceimplicating this accused. See Criminal Procedure Code, section 234.
Even if an accused goes into the witness box and implicates hisco-accused, the verdict has to be returned against each person onwhat the prosecution was able to prove against him, or what hehas proved against himself on his own behalf. The accused shouldbe convicted on evidence tendered by the prosecution, and not bya co-accused. Counsel cited Kalu Banda v. Arumugam,1 Jay a-wardene v. Baba Appuhatny,2 * Karunaratne v. Appvhamy,* P. C.Trincomalee 750,4 Amaris Appu v. Paulis Appu,6 Bex v. KaluBanda (supra).
Akbar, 8. O. (with him Barber, C.C., and Dias, C.C.), for theCrown.—The cases cited are mostly on the interpretation of section30. This section is borrowed from the Indian Evidence Act, andthe interpretation of the Indian Courts may be followed. The casescited do not apply to the case of a co-accused who gives evidenceon oath as a witness.
Section 30 applies to confessions made before trial and tenderedin evidence at the trial. The confession referred to in the sectionmust.be proved by the Crown against the prisoner. See The Empressv. Ashootosh 8huckerbuthy.*
Under the Indian law an accused cannot give evidence on oathon his own behalf. See 1 Bom. 618.
The confessions with which section 30 deals are confessions madeoutside Court. The local cases (cited Bex v. Kalu Banda (supra) )have no bearing on the present question. Here, the accused gaveevidence, and his evidence was tested by cross-examination bythe co-aCcused. Amaris Appu v. Paulis Appu (supra) and Bex v.Thegis 7 are not express authorities on this point. The remarks areonly obiter.
The words “ in his own behalf ” mean voluntarily. -See King v,Thegis (supra.) If an accused gets into the box, he becomes anordinary witness. There is no subtle meaning attaching to theword “ in his own behalf.”
Counsel cited Bex v. Hadwen and Ingham8 and Bex v. James Paul.9
Section 234 of the Criminal Procedure Code is no authority forsaying that the evidence led for the defence is not to be taken intoconsideration in arriving at a verdict- Compare section 210 whichdetails the procedure in District Courts.
Counsel also cited 22 N. L. B. 353 and Koch 91.
1 {1907) 3. Bal. 66.6(1911)15 N. L. R. 102.
* (1917) 4 C. W. R. 235.4 *(1878)4 Cat. 483 at p. 488.
» (1918) 5 C. W. B. 206.7(1901)5 N. L. B. 107.
4 2 Tam. 60.8(1902)71 L. J. K. B. 581.
* (1920) 89 L. T. K. B. 801.
( 331 )
March 14, 1923. Bertram C.J.—1983*
The simple question referred in this case is whether evidence Rex^^^61*given by an accused person on his own behalf under section 120 (4)of the Evidence Ordinance and implicating a co-accused personcan be taken into account as against the latter. Such a persongiving evidence, according to the express terms of the section,does so “in the same manner and with the like effect and conse-quences as any other witness. ’’ What is the basis of the suggestionthat when he gives evidence directly implicating a person on histrial with him, that evidence shall not have its ordinary effect ?
The suggestion is based on the words “ in his own-behalf, ” and itis argued that these words limit the right of 'the accused person,in giving evidence, to exculpate himself and preclude him fromgiving evidence so as to inculpate another person, or, at any rate,preclude the Court from taking such evidence into account, if theprisoner gives it.
It is a sufficient answer to this contention to say, as was said byMoncreiff, in Rex v, Thegia (supra) “ there is nothing to show thatany subtle meaning was to be attached to the words ‘ giving evidenceon his own behalf.’ '' The words simply mean that the accusedmay go into the box as an ordinary witness. "The ordinarymeaning of the expression is that the party puts himself in the box,and gives such evidence as he thinks fit on his own side. ’’ As itwas put by my brother Garvin in the argument, before the enactmentof the section, a prisoner could not give evidence in his own behalf.
The section relieved him of that disability. The words certainlydo carry with them this implication, that the prisoner must volun-tarily tender himself as a witness ; he cannot be called by a fellowprisoner. This incidental effect is in England secured by a specialenactment, namely, paragraph (a) of the proviso to section 1 ofthe Criminal Evidence Act. 1898. “ A person so charged shall notbe called as a witness in pursuance of this act, except upon his own.application. ’’
Mr. Rajaratnam, who appeared for the accused person whoseinterests were chiefly concerned, based his argument,* apart from thepoint just dealt with, partly on a supposed general principle of oursystem- of criminal law, and partly on the trend of certain decisions.
The supposed principle of the criminal law to which he referredwas that, a person can only be convicted on evidence tendered againsthim by the prosecution. He drew attention to section 234 of theCriminal Procedure Code which declares that “ when the case forthe prosecution is closed, if the Judge considers that there is noevidence that the accused committed the offence, he shall directthe jury to return a verdict of ' not guilty.' ” There is, however,no such general principle as that contended for. The enactmentcited merely gives the prisoner an additional chance of escape atthe close of the case for the prosecution. There is no reason either
IMS.
Baamu
e. j.
Beat v. Vkk**Banda
( 332 )
in a civil or a criminal trail why the evidence called on one sideshould not be supplemented by evidence which may incidentally beadduced on the other. If Mr. Rajaratnam were right, the jury would,be required to exclude from consideration, not only any evidencegiven by the prisoner himself, but also the evidence of any witnesscalled on the prisoner's behalf. This is not the English law, and itis on the principles of the English law that our own system is based.
In Regina v. Burdett 1 Jervis C.J. said, with reference to evidenceso called, “that evidence became tacked as it were to the case forthe prosecution. ’’ On this point there is a case remarkedly in pointreferred to in Archbold’s Criminal Pleading, Rex v. Martin.* Un-fortunately, the report is not available, but the note in Archboldis as follows :•—
“ Where two persons were jointly indicted and tried togetherfor an offence under 52 and 53 Viet., c. 44 (i.e., “ ThePrevention of Cruelty to Children Act, under which, evenbefore the Act of 1898, accused persons were competentwitnesses), and at the close of the case for the prosecutionthere was no case made out against one of the prisoners,and the other prisoner elected to give evidence; it washeld that the prisoner against whom no case had beenmade out by the prosecution was not entitled to bedischarged, but must take his chance of the other prisoner'sevidence making against him. ’ ’
I am not to be taken as ruling that a decision upon the expressterms of Section 234 would necessarily be the same, but, at any rate,that case indicates that it is not a principle of the English law thatthe only evidence to be taken into account against the prisoner isthe evidence adduced by the prosecution.
With regard to the cases cited, they were as follows:—KaluBanda v. Arumugan (supra) which was a decision on section 30 of theEvidence Ordinance. Jayawardene v. Baba Appuhamy (supra) where,on the special facts of the case, De Sampayo J. ruled that after oneaccused person had closed his case, the evidence called by anotheraccused on • his own behalf should not have been considered againsthim. Karunaratne v. Appuhamy (supra) which was also a case onsection 30 of the Evidence Ordinance, and above all the judgment ofMiddleton J. in P. C. Trincomalee, 750 (supra) that “ the evidencegiven on oath by one accused against another is, on the principle ofsection 30 of the Ceylon Evidence Act, not evidence against such other,the first accused, giving such evidence not having been pardoned,convicted, or acquitted.” These case's were, to a certain extent,supported by- two dicta—one of Wood Renton J. in Amaris Appu v.Paulis Appu (supra) and the other of Lawrie A.C.J. in Rex v. Thegis(supra), which suggested that if what a prisoner said, when givingevidence, amounted to a confession affecting himself and any other
1 G Cox'* Criminal Case 458.*17 Cox 36.
( 333 )
accused jointly tried with him, such evidence should not be taken intoconsideration against such other accused. It was urged in the Courtbelow, at any rate, that the suggested trend o£ these decisions wasreinforced by the very wide interpretation given by this Court tothe word “ confession ” in the case of Rex v. Kalu Banda (supra).
It is not known by what reasoning Middleton J. supported thedecision above cited, but this case and almost all the other cases,as well as the two dicta referred to, are all based on some supposedeffect imputed to section 30. It is clear, however, that section 30has nothing whatever to do with the matter. Section 30 relatessolely to confessions made before the actual trial- and tendered inevidence at the trial by the Crown against the prisoner. It relatesto confessions which are “ proved " in the case. See per GarthC.J. on the corresponding section of the Indian Evidence Act inThe Empress v. Ashootosh Chuoleerbutty (supra.) “ The word 4 provedin section 30 must refer to a confession made beforehand.Section 30, therefore, may. be entirely left out of the case, and indeciding this question we are in no way embarrassed either bydecisions or dicta as.tc its supposed effect.
So also with regard to the decision of this Court in Rex v. KaluBanda (supra). That decision relates solely to statements madebefore the trial, and sought to be proved at the trial. What I takeRex v. Kalu Banda (Supra) to have decided is this: That if theCrown at the trial of a prisoner tenders in evidence a statementmade by the prisoner, whether self-inculpatory or self-exculpatoryin intention, with a view to an inference being drawn by the Courtfrom that statement against the prisoner, that statement becomesex vi termini, as defined by section 17 (2), a “ confession, ” and thatif it was made to a police officer it cannot be received in evidence.
While it. is of interest to note the principles of English law, wehave, on the particular point under consideration, no actual occasionto have recourse to them. The point is provided for by the expresswords of section 120 (4), namely, that the accused “ may giveevidence in the same manner and with the like effect and consequencesns any other witness. ” It is, however, interesting to note thatin the. English Act of 1898, section 1 (f) (3), the giving'of evidenceby one accused person against another is expressly contemplated.There was one case, however, under the English law which gave ussome occasion for thought. I refer to Rex v. Had wen and Ingham(supra) which decided that when one prisoner gives evidence on oathinculpating another charged in a joint indictment, he is liable tobe cross-examined by or on behalf of the other. Lord AlverstoneC.J. there said:—•
44 The direction of the Judge at the trial that criminating evidencegiven by one prisoner is not evidence against the othermay not be so effective a protection as would be affordedby cross-examination of the prisoner giving evidence.
1988*
BbbtramC. J.
Rexv. UkbuBanda
( 334 )
1938.
BertramO. J.
Revv. VkkuBanda
Wright J. referred to—
“ The old rule of common law that the evidence of one defendantin a criminal trial cannot be used against another a ruletone* of the grounds of which was the great danger thatone defendant would be tempted to exculpate himself andinculpate his co-defendant.
The explanation of these dicta is, I think, as follows: Under theEnglish law, before the Act. of 1898, prisoners, except in specialcases, could not give evidence. They might make statements inthe dock (as they may still do), but it was customary to warnjurors that such statements should not be taken into account asagainst any other piisoner. See Allen v. Allen. 1
‘ ‘ In the case of prisoners jointly charged with an offence, thejury are always most carefully warned that what onemay say inculpating the other is not evidence againstthat other. The reason is because one prisoner canuotcross-examine another, and, therefore, their statementscondemnatory of each other, unassailable by cross-examination would be valueless. ”
Lord Alverstone did not mean to suggest that it is still the dutyof a Judge to address such a warning, to the jury. Both he andWright Jr were considering whether if a person gave evidenceagainst another he might be subjected to cross-examination. Itwas recognized that if it was decided that cross-examination of theprisoner was allowable, the old rule would necessarily be abrogated.He considers, in the first place, the general interests of justice,and he expresses the opinion that cross-examination would be amore effective protection to the prisoner than the direction hithertocustomarily given to the jury. He does not suggest in any waythat, if the evidence given by the prisoner was decided to he subjectto cross-examination, it would still be the duty of the Judge to givesuch a direction. Wright J.'s reference to the old rule of commonlaw as being that “ the evidence 'of one' defendant in a criminalease cannot be used against another ” is somewhat loosely framed.By “ evidence ” he means not evidence given on oath, but a state-ment made in the dock. These dicta, therefore, have no applicationto present circumstances. This case is, however, a useful reminderof this fact: that where in a criminal trial two co-accused personselect not to give evidence, but are content to rely either upon theirstatements in the Police Court or upon unsworn statements in thedock, the jury should be warned, where such a statement by oneprisoner inculpates the other, that it should not be taken intoaccount against him.
1 (1894) Probate 253.
( 335 )
Where sworn evidence is in fact given, the English law goes towhat may be almost described as extreme lengths. When oncethe prisoner enters the witness box, he becomes a witness in everysense oi the term, and there are no restrictions to the questionswhich he may be asked, except those which are prescribed by law.Thus, in Hex v. James Paul (supra), a prisoner went iqto the box, andsimply said that he was guilty, and had nothing more to say. Itwas held that counsel for the Crown might thereupon cross-examinehim, with a view to making him inculpate another prisoner jointlyindicted with him. See per Beading C.J.: —
“ As soon as a prisoner goes into the witness box as a witnessfor the defence and is sworn, counsel ior the prosecutionis entitled to cross-examine him. it was also contendedthat counsel for the prosecution is not entitled to cross-examine a prisoner called as a witness for the defenceso as to incriminate a person charged jointly with him.This contention is a novel one. No case was cited insupport of it, and it is also contrary to the usual practice,and in the opinion of the Court it entirely fails.”
I venture to doubt whether in our own Courts this procedurewould be followed in similar circumstances without an expressionof opinion on the part of the Court that the right so given to theCrown ought not to be exercised.
In my opinion, therefore, the proper direction to give to thejury in such cases is that while they should be very careful in actingupon such evidence, in view of the temptation which always assailsa prisoner to exculpate himself by inculpating another, yet, thatsubject to that warning, they must weigh and consider evidenceso given against another prisoner. In my opinion the judgmentand sentences in the case should be confirmed.
De Sampayo J.—1 concur.
Porter J.—I concur.
Garvin J.—I agree
Schneider J.—I left Colombo on circuit within a day or twoafteT this appeal was argued. I made no attempt to write anyjudgment owing to the want of the necessary books for the purposeof reference- I have now received and read the- judgment of myLord the Chief Justice while I am still here on circuit. I feel Ihave nothing which I can usefully add to what he has said. Ientirely agree with his judgment.
1928.
Bertram:0. J.
Rewv. UkkuBanda
Conviction affirmed.