077-NLR-NLR-V-72-T.-P.-VEERAPPEN-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
Veeroppen v. Attorney-General
361
[Privy Council]
1969Present: Lord Hodson, Viscount Dilhorne
Lord Donovan, Lord Pearson and Lord Diplock
T. P. VEERAPPEN, Appellant, and THEATTORNEY-GENERAL, Respondent
Privy Council Appeal No. 11 op 196SS. G. 1249J56—M. C. Badulla {holden at Bandaratcela), 44156
Criminal law—Charge of forgery—Penal Code, ss. 452, 453, 454—Citizenship Act,s. 6—Defence of autrefois acquit—Burden of proof—Whether accused shouldbe given an opportunity of calling evidence if the defence that prosecutiondoes not support the charge is not accepted—Sentence—Privy Council will notgenerally interfere with it—Appeal against acquittal—Conviction thereafter—Desirability of accused being heard—in-mitigation of sentence.
The defence of autrefois acquit cannot succeed if in the relevant earlier casethe accused was discharged because counsel for the prosecution stated thatthe prosecution was not adducing any evidence against the accused and thereis no indication that the accused was called upon to plead to the charge. Insuch a case it cannot be said that the appellant was ever put in peril on thefirst occasion.
"Where, at the trial of a criminal case, Counsel for the accused states thathe is not calling any evidence but makes a submission in Jaw to the effect thatthe evidence for the prosecution does not support the charge, there is noobligation on either the trial Court or the Supreme Court (on appeal from anacquittal) to give a further opportunity to the accused of calling evidence ifthe submission made on behalf of the accused is not accepted and the accusedis convicted.
The Judicial Committee of the Privy Council does not as a rule interferewith sentences.
In appeals against acquittals it is highly desirable that accused personsshould have the opportunity, after conviction by an appellate court, of pleadingin mitigation of sentence,
Appeal, with special leave, from a judgment of the Supreme Court.
The appellant was convicted by the Supreme Court of forgery forforging a birth certificate in connection with an application made by himfor a certificate of citizenship in terms of section 6 of the CitizenshipAct. In the appeal to the Privy Council the appellant by his counseldid not argue that the conclusion of the Supreme Court as to the forgerywas not sustainable but relied inter alia upon the defence of autrefoisacquit for setting aside the judgment of the Supreme Court.
F. N. Gratiaen, Q.G., with John Baker, fgr t^O accused-appellant.
Montague Solomon, for the respondent,
Cur. adv. Hull
Lxxn—16
!•—1104S—2,255 (1/70)
362
LORD HODSON—Veerappen v. Attorney-General
October 6, 19G9. [Delivered by Lord Hodsox]—
The appellant was convicted in the Supreme Court of Ceylon on 27thFebruary 19G7 and sentenced to a term of two years rigorous. imprisonment on a charge of forgery jmnishablc under section 454 of thePenal Code which provides for a maximum period of five yearsimprisonment to be imposed.
He was granted special leave to appeal by Order of Her Majesty inCouncil on 13th November 1967.
He had been charged on 10th March 1DGG in the Magistrate’s Court ofBandarawela “that on 26th August 195S he did sign a document towit :
‘ Application for a certificate of citizenship by descent, to be issuedby the Minister of Defence and External Affairs in terms of Section 6of the Citizenship Act (Cap. 349) with the intention of causing it to bebelieved that the said document was signed' by Veerappen son of- Th ini man, (who was born to Thiruinan and Lechemoy on SherwoodEstate on 1st May, 1918, and in respect of whose birth the BirthCertificate No. 41904 had been issued by the District Registrar ofBadulla on 12.C.5S) by whom or by whose authority he knew thatthe said document was not signed, and he has thereby committed anoffence punishable under Section 454 of the Penal Code.’ ”
The offence with which he was charged is not ordinarily triablesummarily by a Magistrate’s Court but the Magistrate, being also anadditional District Judge, assumed jurisdiction on the grounds (1) thatthe foots were simple (2) expeditious disposal was desirable for the offencewas alleged to have been committed in 1953 and (3) no complicatedpoints of law arose. Though entitled to assume jurisdiction under section1-52 (3) of tlie Criminal Procedure Code the. Magistrate had no power toimpose any sentence but one which a District Court might lawfullyimpose. The punishment which he could have imposed if he had foundthe appellant guilty was therefore limited to two years imprisonment asopposed to the maximum of five }'ears laid down in section 454 of thePenal Code.
The appellant pleaded “ not guilty ”, was not called as a witness nor didhe offer other evidence save that he put in a document to which referencewill be made hereafter. He was acquitted on the ground that, on thefacts proved by the prosecution, the charge of forgery had not beenestablished, his offence, if any, being that of cheating.
Upon aj>peal by the Attorney-General to the Supreme Court againstthe acquittal the Court held that upon the facts found by the Magistrateforgery within the meaning of section 453 of the Penal Code lnad beenmade out.
The appellant was an Indian Tamil resident in Ceylon. He.had been awatcher on apostate in Haputale, In July 195S he wrote to the PermanentSecretary, Ministry of Defence and External Affairs, at Colombo asking
LORD 1IODSOX—Vecrappcn v. Attorney-General
3C3
iliit his position as a citizen of Ceylon by birth under section C of theGifizendii]) Act. Xo. IS of 19IS, should be clarified and also askingfur an application form. He signed the letter in Tamil.
A form was sent and filled in by him ns “ THIRUMALAI alias1'ALAX1.MALAX VEERAPPEX ”. No jjoint Avas made of the differencebetween Thiruman and Thinimalai. The appellant did hoAA'ever state,in answer to the questionnaire, that his father had been born in Ceylonand that he could produce documentary evidence of his oAA*n birth inCeylon, the x>oint being that he AA-ould then qualify under section 4 ofthe Citizenship Act as a citizen of Ceylon b}’ descent. The appellantsubsequently signed and sent to the Department a form of applicationverified by affidavit in Avhich he gave his date and place of birth as
5.191S Shci'AA'ood Instate, Hajiutalc and also gave his father’s date andplace of birth as 1S9S, Koslande, that is to say rejiresenting that he and-his fatheiiAverc horn in Ce3*lon. The application ivas accompanied b3' abirth certificate recording the birth of one “ Vcerapen ” the-son of“ Tiruman ” on 1st May 191S at the ShcrAvood Estate. A certificate ofCitizenship Aras according^ issued to the appellant stating his name andplace of birth as set out in his application.
The prosecution pro'ed that the appellant AA-as not the person to Avliomthe birth certificate related. The3r produced (1) a birth certificate of theappellant's grandson based on information supplied by the appellantAvhicli shoAA'od that the a^jpellant A'as not born in Ce3rlon, (2) a ProvidentFund record card filled in on information supplied by the appellantshoAving that lie A-as born in South India, and (3) a Labour dischargecertificate of less significance.
The decision of the Magistrate AA-as that b3r enclosing the false birthcertificate Avith his application form the appellant AA-as seeking to passhimself off as the “ Vecrappcn ” son of Tiruman A-ho had the qualificationfor citizenship of Ceylon b3r descent.
The Supreme Court, upon these facts, reversing the decision of theMagistrate, held that a -erdict competing the appellant of forgery shouldbe recorded. Forgeiy is defined by the Penal Code sections 452 and 453as folIOAVs :
“ Section 452
Whoever makes an3r false document or part of a document AAithintent to cause damage or injury to the public or to any person, orto the GoA-emment or to support any claim or title, or to cause anyperson to part A-ith xJrox?ert3r, or to enter into any express or impliedcontract, or AA-ith intent to commit fraud, or that fraud may becommitted, commits forgery.
364
LORD HODSON’—Veerappen v. Attorney-General
Section 453
A person is said to make a false document:
Firstly who dishonestly or fraudulently makes, signs, seals, orexecutes a document or part of a document, or make3 any markdenoting the execution of a document, with the intention of causingit to bo believed that such document or part of a document wasmade, signed, sealed, or executed, by or by tho authority of aperson by whom or by whose authority he knows that it was notmade, signed, sealed, or executed, or at a time at which he knowsthat it was not made, signed, sealed, or executed . . ; ”
The appellant by his counsel did not argue before their Lordshipsthat the conclusion of the Supreme Court as to the forgery was notsustainable but relied upon other matters as substantial grounds forsetting aside the judgment of the Sujweine Court.
First he relied on the defence of “autrefois acquit’*. This defencewas raised before the Magistrate on 7th May 1968 by counsel who tenderedin evidence the Charge Sheet and Record of Discharge in Joint Magistrate’sCourt Colombo, Case No. 29950, 28th October 1963 to 24th February1965. The Charge Sheet reads as follows :
" Accused Palanimalay Veerappan.
That between the 2nd day of July, 195S and the 22nd day ofSeptember, 1959 at Colombo within the jurisdiction of this Court,you did by submitting Birth Certificate bearing No. 41904 issuedby the District Registrar of Births, Badulla with your application fora certificate of Citizenship in terms of Section 6 of the CitizenshipAct (Chapter 349 L.E.C.) attempt to deceive the Hon. S. W. R. D.Bandaranayake, Minister of Defence and External Affairs into thebelief that the said Birth Certificate which referred to the birth ofVeerappan S/O Tiruman born at Sherwood, Haputale on 1st May,1918, referred to your birth, and thereby fraudulently attempted toinduce the said Hon. S. W. R. D. Bandaranayake to issue you witha certificate of Citizenship in terms of Section G of the CitizenshipAct (Chapter 349 L.E.C.) which act he would not have done had henot been so deceived, and whioh act was likely to cause loss or damageto the Government and you have thereby committed an . offencepunishablo under Section 400 read with Section 490 of the PenalCode.
That at the time and place aforesaid and in the course of thosame transaction you did for the purpose of procuring a certificate
• Citizenship issued in terms of Section 6 of the Citizenship Act(Chapter 349 L.E.C.) make a statement to wit: that you wereVeerappan S/O Tiruman born at Shenvood Estate, Haputale Ceylonon 1st May, 191S, knowing such statement to be false in a matorialparticular to wit, that, you were Veerappan S/O Tiruman a Citizenof Ceylon by descent and you are thereby guilty of an offence punishable. under section 25 of the Citizenship Aot.”
LORD HODSON—Veerappen v. Attorney-General
365
The Record of Discharge in this case shows that the accused waspresent. Then follows the word “Evidence” and underneath appearsthe following :
“ Air. Adv. Sittampalam instructed by Mr. Siva Subramaniam for
the accused.
]Mr. W. Paul C.C. for the prosecution states that the prosecution is
not adducing any evidence against the accused in this case.
J discharge the accused.”
There is no indication that the appellant was called upon to plead to thecharge. This case can be contrasted with the procedure followed on thetrial with which this appeal is concerned ; when the appellant on beingasked if he had any cause to show why he should not be convicted 6tated“ I am not guilty ”.
The Magistrate rejected the plea of autrefois acquit on the groundthat the charge made under section 454 was not one of the charges" incase No. 29950 but in their Lordships’ view it is unnecessary to considerthe question whether the substantial issues raised in the secondproceedings are the same as those raised in the first-.
The Record does not show that the appellant was ever put in perilon the first occasion. It shows the reverse namely that counsel for theprosecution stated that the prosecution was not adducing any evidenceagainst the accused in the case whereupon he was discharged.
There is nothing to indicate that the apjiellant was ever called upon toplead and a search of the Court journal has not shown any indication thathe was called upon. The burden being upon appellant to establish theplea of autrefois acquit and there being no evidence to support it thisground of appeal is not established.
A second point, taken somewhat tentatively on behalf of the appellantwas that when his Counsel stated that he was not calling any evidencebut made a submission in law to the effect that the evidence for theprosecution could not support a charge of forgery, he was making asubmission of “ No case to answer ” ; and that if the Magistrate hadover-ruled that submission justice required that he should then have giventhe appellant an opportunity of leading evidence. Further it wassubmitted that the Supreme Court should not have set aside the verdictof acquittal entered by the Magistrate without giving the sameopportunity to the appellant since the Supreme Court was in effectdoing no more than over-ruling a submission of “ No case to answer ”,
There is no substance in this point. When the case for the prosecutionwas closed on 8th July I960 the Magistrate called on the appellant forhis defence. His Counsel then indicated that he was calling no evidenceand conhned himself to tendering the Charge Sheet and the record ofthe earlier proceedings. The appellant’s counsel in whose hands he was,
J 11043 (1/70)
' 366
LORD HODSOX—Vee'rappen v. Attorney-General
indicated plainly that he was calling no evidence apart from the documentto which reference has been made. In so tar as it can be inferred that. Counsel submitted there was no case to answer that submission was notover-ruled but was accepted and the Magistrate, upon the facts provedbefore him came to the conclusion, afterwards reversed by the SupremeCourt, that the offence of forgery was not established.
The Supremo Court, upon those facts, tlio only facts which theappellant had sought to put forward substituted a verdict convicting theappellant of forgery for the verdict of acquittal which the Court setaside.
No injustice was done to the appellant in that the Supreme Court didnot, before giving judgment, give him a further opportunity of callingevidence.
Finally it was submitted that there was a grave irregularity in theSupreme Court in that the Judgment in its final paragraph imposed asentence of two years rigorous imprisonment without giving an .opportunity for the appellant to be heard in mitigation of sentence in.the event of a conviction being entered against him.
Their Lordships cannot uphold this objection. They will not as arule interfere, wntli sentences. Moreover on the face of it the sentenceis not in their Lordships’ opinion an excessive one.
It is recognised that, since the judgment was handed out by the Courtto the parties, there was no separate opx>ortunity given to the appellant byhimself or his coimsel to plead in mitigation. Nevertheless notice hadbeen given by the Petition of Appeal that the Attorney-General -waspraying not only to have the order of acquittal made by the Magistratereversed but also that sentence might be passed on the appellant according.to law.
Kt was therefore open to the appellant to deal at the hearing before theSupreme Court with the question of punishment. It is true that this isa course which an appellant will not readily take when the question ofconviction is still in suspense. Their Lordsliijis do not regard withsatisfaction the practice, if such there be, of dealing with sentences withouthearing a pica in mitiga tion.
Even though appeals against acquittals may be few in number theyregard it as highly desirable that accused persons in such cases shouldhave the opportunity after conviction by an appellate court of pleadingin mitigation.
For the reasons given above their Lordships will humbly advise HerMajesty that the appeal should be dismissed.
Appeal dismissed.