Vivekanandan v. Selvaralnam
1977 Present: Malcolm Perera, J. and Ratwjatte, J.
S. VIVEKANANDAN and ANOTHER, Accused-Appellants
andS. SELVARATNAM, RespondentS. C. 285-286/75—M.C. Colombo Fort 52052
Evidence Ordinance, sections 24, 30—Confession by accused—Meaning ofword “ appears ” in section 24-—Inducement threat or promiseBurden of proof—Extra-judicial confession—Whether admissibleagainst co-accused.
Section 24 of the Evidence Ordinance does not require positiveproof of improper inducement, threat, or promise to justify rejectionof confession. If the Court after a proper examination and a carefulanalysis of the evidence and the circumstances of the given casecomes to the view that there appears to have been a threat, induce-ment, or promise offered, though this is not strictly proved, thenthe Court must refuse to receive in evidence the confession. Theburden is on the prosecution to prove that the confession is voluntaryand there is no burden of proof on the accused to prove theinducement, threat or promise.
An extra-judicial confession of an accused cannot be used inevidence against his co-accused and is excluded by section 30 ofthe Evidence Ordinance.
Cases referred to:
King v. Franciscu Appuhamy, 42 N.L.R. 533.
King v. Weerasamy, 43 N.L.R. 152.
Joseph v. Perns, 24 N.L.R. 485.
Ibrahim v. King, (1914) A.C. 599.
R. v. Thompson, (1893) 2 Q.B. 12-Emperor v. Panehkari, A.I.R. 1925 Cal. 587.
Rex v. Mansfield, (1884) 14 Cox C.C. 369.
Queen Empress v. Basvanta, (1900) A.I.R. 25 Bom. 168.
Pyare Lai v. State of Rajasthan, (1963) Vol. SO A.I.R. (S.C.) 1094.
APPEAL from a judgment of the Magistrate’s Court, ColomboFort.
A. H. C. de Silva, Q.C., with M. Underwood and Anil Silva, forthe 1st accused-appellant.
r 1«—AIU878 (70/00)
MALCOLM 7’ERERA, J.— Vivekanandan r. Selvaratnam
W. Jayewardene, Q.C., with N. R. M. Daluwatta, N. Dharma-dasa and Miss P. Seniviratne, for the 2nd accused-appellant.
Sunil de Silva, Senior State Counsel, for the Attorney-General.
Cur. adv. vult.
December 16, 1977. Malcolm Perera, J.
The following three important questions arise for determi-nation in this appeal:
Has the learned Magistrate given adequate considerationto the question of the confessional statement made by the 1staccused-appellant to witness V. P. de Silva ?
Has the learned Magistrate properly assessed and evaluatedthe evidence of the main witnesses, Wilfred, Peiris and V. P. deSilva ?
Has the learned Magistrate addressed his mind to thequestion that an extra-judicial confession of one accused personis not evidence against his co-accused who stand this trialtogether with the confessor ?
The facts of this case are briefly as as follows :
The ship Straat Clement entered the port of Colombo on the2nd of May, 1971, and was berthed alongside the BandaranaikeQuay. Information had reached the Customs authorities that thevessel was carrying contraband goods, which were to be removedfrom the ship with the assistance of some Custom’s Officers. Onreceipt of this information witness Pakiaratnam the AssistantCollector of Customs, Colombo, gave instructions to all CustomGuards that they should keep a careful watch on the ship andprevent any Custom Officers boarding that ship. Assistant pre-ventive Officer, witness Joseph was made aware of the preven-tive measure adopted by Pakiaratnam as Joseph himself waspresent when the Assistant Collector instructed the guards.Among the Custom Guards who kept vigil that night in civilianclothing were witness Wilfred and Peiris. According to Wilfredhe was on duty from 4.10 p.m. on the 4th of May, 1971. He waskeeping a watch on the ship along with the witnesses Peiris andanother Customs Guard by the name of Dias. When they werethus keeping watch at about 7.30 Wilfred saw the first accusedwho was in uniform boarding the ship Straat Clement carryingin his hand a bag. Wilfred who was near the crane was keepinga close watch as to the movements of the first accused. Noticing
MALCOLM PERERA, J.— VweKanandan v. Selvaratnam
a package about 15 feet from the gangway he sat on it. About9.00 p.m. he saw the first accused coining down the gangwaywith the bag in his hands. He however noticed that the bagappeared to be weighing heavier than when he first saw it inthe hands of the first accused at the time he boarded the ship.The first accused walked down the gangway and went in thedirection of the open space between warehouse one and two andhe followed him. In that open space he saw the second accusedin his car. The first accused got into the car along with the bag.At this stage Wilfred went up to the first accused and questionedhim as to what the bag contains. The first accused told him thatthere were about five or six bottles of whiskey ; not being satis-fied with this answer, it is the position of Wilfred that he tookthe bag out of the car and the two accused drove away. Before thecar drove off Wilfred did not see or hear any conversation bet-ween the first and second accused. Wilfred thereupon took thebag to the Preventive Office and informed witness Pakiaratnamon the telephone who instructed him to meet him at his office.The witness Peiris and guard Dias who were present withwitness Wilfred during the transaction were given in charge ofthe bag and Wilfred proceeded to Pakiaratnam’s office. Havingrelated to Pakiaratnam all that transpired, Wilfred requestedhim to go to the Preventive Office and to examine the contentsof the bag. Pakiaratnam and Wilfred went to the PreventiveOffice and there Pakiaratnam informed the higher officer, laterthe bag was opened and inside the bag there were 566 wristwatches and 36 metal watch straps. Witness Peiris gave evidenceand his testimony was to the evidence given by Wilfred.
The prosecution also led the evidence of witness V. P. deSilva who was the Deputy Collector of Customs in May 1971and through him produced P 21, a confessional statement madeby the first accused to him on the 7th of May, 1971, at 10.00 p.m.This was one of the main items of evidence on which the prose-cution relied to prove beyond reasonable doubt the followingcharges:
“ 1. that on or about the 4th day of May, 1971, at the Portof Colombo within the jurisdiction of this Court, the firstaccused above named did unship from the motor vessel‘ Straat Clement ’ goods which are restricted and importedcontrary to such restriction, to wit, 568 wrist watches and36 metal wrist straps valued at about Rs. 105,000 in breachof section 12 of the Customs Ordinance read with section 4
MALCOLM PBRERA, J.—Vivekanandan v. Selvarainam
of the Import and Export Control Act, No. 1 of 1969, and hasbecome liable under section 129 of the Customs Ordinance toforfeit a sum of Rs. 315,000 and that he has thereby committedan offence punishable under section 146 of the CustomsOrdinance (Cap. 335).
2. that at the time and place aforesaid and in the courseof the same transaction the second accused above named didassist the first accused above named or was otherwise con-cerned in unshipping from the motor vessel, Straat Clementgoods which are restricted and imported contrary to suchrestriction to wit 566 wrist watches and 36 metal wrist watchstraps valued at about Rs. 105,000 in breach of section 4 of theImport and Export Control Act, and has become liable undersection 129 of the Customs Ordinance to forfeit a sum ofRs. 315,000 and that he has thereby committed an offencepunishable under section 146 of the Customs Ordinance(Cap. 235).”
It would be convenient at this point to examine the evidenceof witness V. P. de Silva. According to him he had beeninstructed by the Principal Collector of Customs to hold aninvestigation into this activity of unshipping goods. He wasasked “ to go deep into the matter and find out the people whoare involved in this alleged smuggling ”.
He recorded the statement of several persons. He had sum-moned the first accused and asked him to make a statement.He asserted in his evidence that the first accused made a volun-tary. statement. The first accused’s statement has been producedmarked P21. I have carefully examined this witness’ testimony.No doubt he claimed in examination-in-chief that he did notoffer any promise, threat or inducement to the first accused tomake a statement. In cross-examination it was suggested tohim that by nature he was of a very aggressive disposition. Headmitted he was charged in Court several times for intimida-tion. On one occasion he was charged with having intimidatedMr. Mahesan, an Attorney-at-Law and on that occasion he hadapologised to Mr. Mahesan. Going through his evidence I cometo the inescapable conclusion that, to say the least, this witnesshas been most evasive in the manner he had given his evidence.I have been able to discover not less than twelve occasions incross-examination where he had answered the questions in amost evasive way. Questions were asked from him in rapid
MALCOLM PERERA, J.— Vivekanandan v. Selvaratnam341
succession one on the heels of the other on the vital issue of thevoluntariness of the statement of the first accused. These ques-tions and answers are as follows :
Q. “Do you remember that on the next day the firstaccused met you for the first time and told you thathe was innocent and sought your help ?
A. I cannot recall that but it is quite possible.
Q. You told him that the papers had yet to come ?
A. I cannot remember but it is possible.
Q. The papers came to you in the course of the day ?
A. It is possible.
Q. The first and the second accused met you in the officeearly in the day ?
A. I cannot clearly recollect but it is possible.
Q. Do you remember the first accused met you and told thathe was innocent and he wanted you to reconsiderEdiriweera’s fine ?
A■ It is possible but I cannot recollect.
Q. When they met you, you told them that you cannncbelieve the story of the first accused to Ediriweera—actually by that time you had Ediriweera’s report ?
A. It is possible but I cannot recollect.
Q. You told them that you are interested in getting tothe bottom of the matter in smashing the ring behindthis smuggling ?
A. It is possible. I can be sure that I told them that beforeI recorded the statement but I cannot recall whereI met them earlier.
Q. I am putting it to you that you told the first accusedthat he would help him out and you gave the firstand second accused time to think over the matter ?
A■ I cannot be sure. I deny that I told the first accusedto think over the matter and come.
Q. You met them in the morning and sent them awaybecause you were not satisfied with the informationwhich they said they were giving you in order to helpyou to do what you wanted ?
—A 44079 (79/09)
MALCOLM PERERA, J.—Vivekanandan v. SelvarcUnam
A. It is possible that I may have had a few words butI really commenced the inquiry when I commencedrecording the statements. It is possible that I may havehad a few words with them in the morning.
Q■ You told the first accused, “ Look here, you have notworked under me, look here did you not work underhim ?”
A. I cannot remember.
Q. Then you told the first accused you do not know whatkind of a man I am ?
A. I have no recollection.
Q. You also told the first accused that you did not wantto hear the story that he had already told Ediriweera ?
A. I do not recall.”
It is most unfortunate that this witness has displayed an aver-sion to answer simple questions in a straightforward manner. Hehas sought too often to seek refuge in his often repeated formula,“ it is possible, but I cannot recollect I cannot overlook hisperformance, as these questions and answers are most relevantto the vital issue of voluntariness of the statement of the firstaccused produced as P21.
It transpired from the evidence that the first accused hadalready made an exculpatory statement to Mr. Ediriweera,another Customs Officer, before P21 was recorded. The defenceposition is that witness de Silva has stated to the first accusedthat he did not believe the contents of the statement made toMr. Ediriweera, and he wanted to know the truth to smashup the smuggling ring. In this context, the defence counselquestioned witness thus :
“ Q. You further told the first accused I want the completetruth ?
A. I think I might have explained to him the purpose ofmy investigation and told him that I want the completetruth. ”
From this answer it is clear, that a person in authority likewitness de Silva with his admitted aggressive and stern dis-position had demanded the truth, from the first accused.
MALCOLM PERERA, J.—ViveJcanandan v. Sdvaratnam
The question that I have to determine is whether the evidenceof witness de Silva, and the surrounding circumstances disclosea probability that there was a threat, inducement or promiseoffered by de Silva to the first accused to make the statementP21.
Section 24 of the Evidence Ordinance reads as follows :
“A confession made by an accused person is irrelevantin a criminal proceeding if the making of the confessionappears to the court to have been caused by any inducement,threat or promise having reference to the charge againstthe accused person, proceeding from a person in authority,or proceeding from another person in the presence of aperson in authority and with his sanction, and which induce-ment, threat or promise is sufficient in the opinion of thecourt to give the accused person grounds, which wouldappear to him reasonable, for supposing that by making ithe would gain any advantage or avoid any evil of a temporalnature in reference to the proceeding against him.”
At the outset, the Court must determine the meaning of the wordappears. I think what the Court has to decide is not whetherit has been proved that there was a threat, inducement orpromise, but whether it appears to Court that such threat, induce-ment or promise, was present. I am inclined to the view that theword “ appears ” indicates a lesser degree of probability thanit would have been, if the word “ proof ” as defined in section3 of the Evidence Ordinance had appeared in section 24.
In the case of Pyarelal v. State of Rajastan, (1963) S.C. 1094,the Supreme Court of India stated that the crucial word is theword appears, and that the appropriate meaning of it is “ seems ”.It imports the idea of a lesser degree of proof of the fact ofthe presence of inducement, threat or promise.
In the case of King v. Franciscu Appuhamy, 42 N.L.R. 553,Wijewardene, J- (as he then was) stated “It is not necessaryfor a Court to insist on the high standard of proof contemplatedby section 3 of the Evidence Ordinance before it rejects asirrelevant under section 24 of the Evidence Ordinance, a con-fession on the ground of an improper inducement, threat orforce. The use of the word ‘appears’ in section 24 indicates amuch lower standard of proof in a matter of this nature. ”
MALCOLM PEREEA, JVivekanandan v. Selvaralnam
In the case of Queen Empress v. Basvanta, (1900) A.I.R. 25Bombay 168, it was held that section 24 does not require positiveproof (as defined in section 3 of the Act) of improper inducementto justify the rejection* of the confession, the word “ appears ”indicating, a lesser degree of probability than would be necessaryif proof had been required.
I should rather think that the legislature has decidedly usedthe word “ appears ” to guarantee to accused persons in crimi-nal proceedings, absolute fairness. Thus section 24 does notrequire positive proof of improper inducement, threat or promiseto justify the rejection of a confession. If the Court after a properexamination and a careful analysis of the evidence and thecircumstances of the given case, comes to the view that thereappears to have been a threat, inducement or promise offered,though this is not strictly proved, then the Court must refuse toreceive in evidence the confession. I should venture to think thata strong possibility that the confession was made under thestimulus of an inducement, threat or promise, would be sufficientto attract the exclusionary provision of section 24 of theEvidence Ordinance.
On an examination of the reasons given by the learned trialJudge, I am of the view that he has failed to analyse the evidenceof witness de Silva, and he has not addressed his mind sufficientlyto the question of voluntariness. Dealing with P21 and theevidence of the witness he says :
“ It was suggested by the defence that this statement was madeunder a promise. Mr. V. P. de Silva denied that the statementwas made under a promise and he further stated that it wasa voluntary statement made by the first accused. ” I do notsee here a careful scrutiny of the evidence of the witness. Furtherthe learned Judge has considered only the question whetherthere was a promise given by the witness to the accused. Hehas not examined the question of threat, which arises from theevidence and surrounding circumstances of this case. The defencehad taken pains to establish the aggressive nature of the witness,and the manner and the circumstances under which the accusedappeared before witness de Silva. De Silva’s conduct, acts andwords also must be taken into consideration. The learned Judgehas failed to do so.
He has been content merely to accept what the witness said,without an examination of his testimony, for in the judgmenthe says “ and he (de Silva) further stated that it was a voluntarystatement made by the first accused.”
MALCOLM PERERA, J.—Vivekanandan v- Selvaratnam
Under our law, the accused is not bound to prove the induce-ment, threat or promise, but the burden is on the prosecutionto prove the voluntariness of a confession to establish itsrelevancy. If the Judge entertains a dqubt as to the voluntari-ness he must reject the confession. Vide King v. Wezrasamy, 43JN.L.R. 152.
The learned trial Judge appears to have considered whetherthe contents of P21 were true or not, and his decision on thequestion of voluntariness has been influenced by his finding thatP21 was a truthful statement.
I must state it here most explicitly, that the mere fact thatthe contents of a confession are true, does not necessarily meanthat the confession is free from taint and hence relevant.
The Judge must carefully analyse the evidence, weighing allthe circumstances, and examine the accused person’s denial ofmaking the confession, assessing the probabilities. If after sucha process it seems to the Judge that the confession has beenmade under the stimulus of an inducement, threat or promise,then the exclusionary provision of section 24 is attracted, and nomatter how true the confession may be, the Judge is requiredby law to exclude it. The reason for this has been succinctlystated by Williams, J. in Rex v. Mansfield, 1884, 14 Cox C.C.369, as follows :
“ It is not because the law is afraid of having the truthelicited that these confessions are excluded, but because thelaw is jealous of not having the truth.”
In the case of Emperor v. Panchakari, A.I.R. 1925, p. 587,Mukherji, J. said “ I am not concerned with the question of truth
or falsity of the confessionI am only concerned with the
question, as to whether they are admissible in evidence. If theyare voluntary they are admissible. Of course if prima facie theyare false, inconsistent, improbable or absurd, that might suggestthat they are not voluntary, but I can see none of these charac-teristics in these two confessions. The contents of these twoconfessions do not help me at all in determining the questionone way or the other.
On the other hand instances are not known—in fact they arenot uncommon in a certain class of cases of voluntary confessionsbeing absolutely false. If the present confessions were of thatcharacter, that is to say, they were voluntarily made, I would bebound to admit them. Again even if I am perfectly satisfied asto the truth of the confession, but if I doubt its voluntarycharacter, I am bound to exclude it under the law. It is true thata such a rejection amounts to excluding truth from a Court ofJustice, but it cannot be helped.”
MALCOLM PERERA, J-—Vivekanandan v. Selvaratnam
Thus for a confession to be admissible it must be voluntary.As was stated by Cave, J. in the leading case of R. v. Thompson(1893—2 Q.B. 12, at 15) :
“ To be admissible a confession must be free and voluntary.If it proceeds from remorse and a desire to make reparationfor the crime, it is admissible. If it flows from hope or fear,excited by a person in authority it is inadmissible. On thispoint the authorities are unanimous. ”
In the case of Ibrahim v. Emperor, (1914) A.C. 599, the PrivyCouncil reviewed the case law and stated :
“ It has long been established as a positive rule of EnglishCriminal Law that no statement by an accused is admissiblein evidence against him unless if it is shown by the prosecu-tion to have been a voluntary statement, in the sense, thatit had not been obtained from him either by fear or pre-judice or hope of advantage, exercised or held out by aperson in authority. The principle is old as Lord Hale. ”
I therefore hold that the extra-judicial confession P21 has notbeen made voluntarily and it must be rejected.
I am unable to escape from the conclusion that the mind oithe learned Judge has been greatly influenced by P21, eventhough towards the end of his judgment he states, “ I do notthink it necessary for me to comment on the confession of thefirst accused marked P21 in the case, as there is independentevidence, which prove the case beyond any reasonable doubtagainst the first accused. ”
However earlier in his reasons the learned Judge has takeninto consideration P21 and sought to explain the conflict of P21with the oral evidence of witnesses Wilfred and Peiris.
The question that I have to decide is whether the learnedJudge has properly examined and evaluated the evidence of thewitnesses Wilfred and Peiris.
At the outset I shall set out the comments of the learned Judgeregarding the evidence of the these two witnesses. They are asfollows :
(1) “When P21 is taken into account, there is a conflictin the prosecution version in so far as the evidenceof the two witnesses Wilfred and Peiris are concerned.It may be that they did not notice another person,accompanying the first accused or that they aresuppressing from Court an important piece ofevidence.”
MALCOLM PEBERA, J.—Vivekanandan v. Seivaralnam
“The two guards Wilfred and Peiris in.my view did
not speak the whole truth and attempted to shieldthe second accused and Sumanadasa another AssistantPreventive Officer.”
“ I cannot accept this testimony of these two guards.”
It will thus be seen on the Judge’s own findings that both thesewitnesses are not trustworthy, on important matters in the case.
However referring to another part of the evidence of thewitness Peiris, the learned Judge says “ There is no reason todisbelieve the evidence of the witness Peiris. His evidence standsuncontradicted on material points. ” I am unable to understandhow the learned Judge comes to say this of witness Peiris, whohas already been found to suppress important evidence fromCourt and who did not speak the truth. It is unsafe to act onthe evidence of both Wilfred and Peiris.
To say the least, I think a reasonable doubt as to the truth ofche prosecution version arises in this case.
Now I come to the third point that an extra-judicial confessionof an accused, cannot be used in evidence against his co-accusedunder section 30 of the Evidence Ordinance. The section readsas follows:
“ When more persons than one are being tried jointly forthe same offence, and confession made by one of such per-sons affecting himself and some other of such person isproved, the Court shall not take into consideration suchconfession as regards such other persons
In the case of Joseph v. Peiris, 24 N.L.R. 485, the complainantcharged the two accused with theft of certain articles. One ofthe circumstances on which the conviction of the first accusedwas based was that the second accused made statement to aperson in authority, a district engineer, implicating first accused.It was held that the confession made by the second accused,outside Court to the district engineer was inadmissible inevidence against the first accused, in view of the provisions ofsection 30.
De Sampayo, J. said “ I am bound to hold that in view of thatprovision, the confession made by the second accused to thedistrict engineer was inadmissible and does not furnish anyevidence against the first accused.”
It is most unfortunate that the learned Magistrate did notconsider this aspect of P21. It is quite clear from his judgmentthat, when he came to consider the case of the second accusedhe was influenced by P21.
Qunasekera v. Attorney-General
The oral evidence of Wilfred and Peiris even if accepted doesnot implicate the second accused. They said that when firstaccused got into the car they did not hear him saying anythingto the second accused. There are no proved circumstances fromwhich one draws the irresistible conclusion of the complicity o£the second accused.
In the result the appeals of the accused-appellants mustsucceed.
I accordingly set aside the convictions and sentences of bothaccused-appellants and acquit them.
These are the reasons that led us to acquit the accused-appellants on the 1st of July, 1977, at the conclusion of theargument of learned Attorneys on both sides.
Ratwatte, J.—I agree.
S. VIVEKANANDAN and ANOTHER, Accused-Appellants and S. SELVARATNAM, Respondent