145-NLR-NLR-V-39-SIRIWARDENE-v.-VANDERSTRAATEN.pdf
SOERTSZ J.—Siriwardene v. Vanderstraaten.
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1938Present: Soertsz J.
SIRIWARDENE v. VANDERSTRAATEN1,031—P. C. Colombo, 12,998.
Deeoy—Evidence of decoy distinguished from, that of an accomplice—Uncorro-borated testimony—Conviction.
There is no rule that a conviction cannot be based on the uncorro-borated testimony of a decoy. The evidence of a decoy should not betreated on the same footing as that of an accomplice.
Caldera v. Pedric (5 Times of Ceylon L. R. 70) and Almeida v. Adiriyan(6 Times of Ceylon L. R: 123) referred to.
^^PPEAL from- a conviction by the Police Magistrate of Colombo.
P. A. Senaratne,' for accused, appellant.
E. H. T. Gunasekera, C.C., for complainant, respondent.
Cur. adv. vult.
February 22, 1938. Soertsz J.—
Mr. Senaratne for the accused-appellant attacks the conviction in thiscase on the ground that it rests.upon the uncorroborated testimony of a“ decoy ” or “ spy ”, that is to say, in this instance, a person employedby the Police to verify the information they had obtained that the accusedwas taking non-taxable bets on horse races.
Mr. Senaratne’s contention is that a decoy or spy occupies exactly thesame position .as an accomplice and that therefore his evidence shouldnot be accepted and acted upon unless it is corroborated by other evidencein material particulars.
I have some difficulty in regard to' this proposition that “ decoys ” orspies must always be treated in the same way as accomplices^ It does
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SOERTSZ J.—Siriwardene v. Vanderstroaten.
not seem quite logical. Technically, a decoy inasmuch as he instigatesor aids and abets the commission of an offence is an accomplice but inreality he is not on the same footing as an accomplice. As pointed outby Justice Maule in the case of Regina w. M-ullins', “An accompliceconfesses himself a criminal and may have a motive for giving informationas it may purchase immunity for his offence. A spy on the other handmay be an honest man ; he may think that the course he pursues isabsolutely essential for the protection of his own interests, and those ofsociety …. The Government are, no doubt, justified in employingspies and I do not see that a person so employed deserves to be blamed ifhe instigates offences no further than to appear to concur with the perpetra-tors. Under such circumstances they are entirely distinguished in factand in principle from accomplices. In Rex v. Despard ‘ Lord Ellen-borough said to the Jury, “ But there is another class of persons whichcannot properly be considered as coming within the definition or aspartaking of the criminal contamination of an accomplice, I mean personsentering into communication with the conspirator (or I would add, withan offender) with an original purpose of discovering their secret designsand disclosing them for the benefit of the public ”.
A decoy or a spy must not therefore, indiscriminately be dubbed anaccomplice and his evidence invariably regarded as that of an accomplice.There are several cases in which it has been held here that it is not desirableto act upon the sole evidence of a decoy (Caldera v. Pedrick5 6) that theevidence of decoys should be examined with great care (Almeida v.Adiriyan ’) . With these views, if I may say so with respect, I am in agree-ment especially because the decoys or spies who generally figure in ourCourts are of doubtful antecedents. But, I find I cannot associate myselfwith the view that as a hard and fast rule one must’ not convict on theuncorroborated testimony of a decoy.
But in this case, the decoy has been corroborated by Waheed. Counselfor the appellant-says he was a co-decoy and therefore just as one accom-plice cannot corroborate another so one decoy cannot support another.This view I have already considered as a proposition of law. As a matterof fact I am unable to agree that Waheed was himself a decoy. Heappears to have been sent to be a spy on the decoy. There is also in thiscase ample circumstantial corroboration.
I dismiss the appeal.
Affirmed.
1 3 Cox cc. 526yp. 531.* 28 State Trials 489.
5Times, oj Ceylon L. R. 70.
6Times of Ceylon L. R. 123.