THE ATTORNEY-GENERAL v. SILVAN SILVA

032-SLLR-SLLR-1981-1-THE-ATTORNEY-GENERAL-v.-SILVAN-SILVA.pdf


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THE ATTORNEY-GENERAL
v.SILVAN SILVA
SUPREME COURTISMAIL. J.. WEERARATNE, X.
AND RATWATTE, J..
S. C. 48/80
M. C. KANDY 155/26
DECEMBER 7. 1981.
Perjury by witness — S 188 Penal Code — S. 41(2) and 161(2) of the Administration ofJustice Law No. 44 of 1973 '
A witness should not be dealt with under s. 161 (2) of the Administration of JusticeLaw (substantially the same as s. 440(1) of the Criminal Procedure Code — cf. Oaths andAffirmations Ordinance) unless the evidence is inherently or palpably false. The questionof perjury must be determined on certainties. In short a witness should not be dealt withunder s. 161(2) unless he is guilty under s. 188 of the Penal Code and then too theCourt must necessarily act in accordance with established legal principles as for instancemaking known to the witness the gist of the accusation against him and this must con-tain a statement of the facts constituting the alleged offence, and he should be affordedthe opportunity of being heard. The charge cannot be based in a matter like this ondepositions other than those in the proceedings.
The burden of proof which should be applied is proof beyond reasonable doubt.The Judge must be 'clear beyond doubt' but it is not necessary that this very languagemust be used.
The false evidence need not be on a material point in the case. The provision cannotbe availed of when there is a conflict of evidence of witnesses.
Cases referred to:
Kanthar Murugesu v. Kanthiah Sivaguru (1926)28 NLR 215.
in're Seemon (1946) 46 NLR 142.
Subramaniam v. The Queen (1956) 57 NLR 409 (P.C.).
Samaratunga v. The Queen (1958) 60 NLR 26 (P.C.)
APPEAL from judgment of the Court of Appeal.
P. S. C. de Siiva Additional Solicitor-General with G. L. M. daSilva S. C. for (he State.Daya Guruge for the respondent.
Cur. adv. vuit.
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December 18, 1981
WEERARATNE. J.
This is an appeal by the Attorney-General from a judgment pf theCourt of Appeal allowing the appeal of the witness-appellant whowas summarily charged and convicted in the High Court of Kandyfor committing perjury by giving false evidence within the mea-ning of section 188 of the Penal Code an offence under Section161(2) read with Section 41(2) of the Administration of JusticeLaw No. 44 of 1973.
The main case from which this matter stems is one in whichtwo accused were indicted in the High Court for offences ofrobbery (Sections 380 and 383) of a Postal Mail Bag containingRs. 12,000/- in cash when it was in transit from the AnuradhapuraPost Office to the Maradankadawela Post Office.
W. A. Silvan Silva, the respondent in the present appeal was atthe relevant time a peon attached to the Cashier's branch of theAnuradhapura Post Office. It was at this section that bundles ofcurrency notes were stacked into mail bags by the relevant offi-cers. There was evidence that the respondent had also helped instacking bundles of notes into the mail bags as well as in tying upand sealing the bags prior to despatch. Then on the morning of therobbery the C. T. B. bus which usually carries the mail bagscontaining the money was stopped by two masked and armedmen. One of the robbers searching for the bags had mentioned"Maradankadawala," from which it was presumed that he was inthe process of selecting that particular bag.
Postal Peon W. A. Silvan Silva the respondent in this appeal,was a witness for the prosecution at the High Court trial referred'to above. He is the younger brother of the first accused W. A.Seemon Silva. It was a part of the prosecution case that the firstaccused Seemon Silva would have known from his brother therespondent that on the 21st September morning a mail bag con-taining Rs. 12,000/- would be conveyed by the C. T. B. Mail busto Maradankadawela.
The learned High Court Judge noticed the respondent underSection 161(2) of. the Administration of Justice Law No. 44 of1973 to show cause why he should not be dealt with for perjuryfor giving false evidence.
"If any person giving evidence on any subject in open Courtin any judicial proceeding under this Law gives, in the opinionof the court before which the judicial proceeding is held, false
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evidence within the meaning of section 188 of the Penal Code,it shall be lawful for the court summarily to punish such witnessas for contempt of court. Whenever the power given by this sec-tion is exercised, the Judge shall record the reason for imposingsuch punishment.”
The wording of section 161(2) is substantially the same as sec-tion 440 of the Criminal Procedure Code, which was taken fromthe Oaths and Affirmations Ordinance No. 9 of 1895, which inclause 1 provides a prompt punishment for perjury by way of sum-mary proceedings. It is implicit therefore that such proceedingsshould be resorted to only when evidence is inherently or pal-pably false. Hence the question of perjury must be determined oncertainties. In short a witness should not be dealt with under sec-tion 161(2) unless guilty under section 188 of the Penal Code.However in exercising the procedure described in Section 162(1),the Court must necessarily act in accordance with established legalprinciples, as for instance that the court must make known to thedefendant the gist of the accusation against him, which must con-tain a statement of the facts constituting the alleged offence, andan opportunity to be heard. The burden of proof which wouldhave to be applied would be proof beyond reasonable doubt.It is not open to Court to base charges in a matter such as this ondespositions other than those in the proceedings.
There .appears to be nothing in the record to indicate that these,basic principles just referred to have not been followed by theJudge of the High Court nor has any comment been made bycounsel for the respondent on this aspect of the matter. A longline of authorities has established that the provision cannot beavailed of when there is a conflict of evidence of witnesses. It isimportant to note that the false evidence need not be on a mate-rial point in the case /ide Kanthar Murugesu v. Kanthiah Siva-guruW).
It would be convenient at this stage to deal with the facts rela-ting to the charge of perjury against the respondent. The learnedHigh Court Judge, as was required of him, informed the respon-dent of the gist of the accusation which formed part of his evi-dence, and in regard to which he formed the opinion that it wasfalse. When translated into English it reads as follows:—
"These money bags are tied and sealed also by the Cashierand the C.O. I do not assist them in that matter. The Cashierand the C.O. used to close the room and put the money intobags and seal them. I do not go to that room. On other days tooI do not assist in packing or sealing the money. I am speaking of
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the position in 1972. Then ! had no connection at all in puttingthe money into the bags. I have no connection even how.Before September 20th I as the Cashier's peon, have never assis-ted in packing or sealing the money."
Learned Additional Solicitor-Geperal submitted that the trialjudge did not base his findings on the fact that the respondent hadgone back on his evidence. He stated that the item in regard towhich the trial judge had found the respondent guilty was onmaterial relating to his duties in the Cashier's branch, where hewas the peon. It was further submitted that the respondent triedto make out in his evidence that he had no knowledge of whatoccurred, and what his duties were. In this connection we have theevidence of the official witnesses. H. W. Paripurnam at the relevanttime was serving as the Post Master (Grade I) and was also incharge of cash. There was also in that section on the 20th Septem-ber 1972 one S. Tharmalingam the Checking Officer. The Cashier'speon W. A. Silvan Silva (the defendant) also helped Paripurnam inregard to his duties. He helped Paripurnam when the latter coun-ted the money and bundled them into bundles of Rs. 10,000/- andRs. 12,000/-. The peon tied the bags of money together, which arethen kept on the Cashier's table and sealed by the peon SilvanSilva. Paripurnam finally checks the seals, and the checkingofficer initials it. This method is in accord with the Postal Dept.Regulations. To a question in cross-examination Paripurnamdenied that the counting of the money and the sealing of the bagswere done in a separate room. P. Thangavelu was the Adminis-trative Officer working in the Anuradhapura General Post Office.On the 20th Sept. 1972 he was-on duty. He stated in evidencethat the respondent's work on the 20th and 21st September '72as the Cashier's peon was assisting the cashier. It was the duty ofthe Cashier's peon, to tie the bags of money and seal them. He alsohelps the Cashier to pack the money. This witness states that hewas watching Silvan Silva helping to seal the bag that containedthe money. R. Shanmugalingam was attached to the AnuradhapuraPost Office. He states that the respondent was the Cashier's peon.The Cashier's peon helps the Cashier to balance the previous day'saccounts, and to close the remittances to Post Offices. What hemeans by "closing the remittances" is counting the money, bund-ling it and getting the Cashier's peon to put the bundles into thecash bag. All this is done in front of the Cashier by his peon. Heknows that the respondent was the Cashier's peon in September1972. In answer to a question whether it is correct that theCashier without giving the peon to handle the money, closes theroom with the help of his assistant and collects and bundles themoney, the witness replied that the cashier's room has two sec-
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tions. It is difficult to keep the door closed always. There is asection which is used to handle money. The witness stated that theduties of this peon from 3 to 4.30 p.m. is shown in the duty list as"assisting to close remittances."
The witness was summoned to produce the "Official Instruc-tions Guide" marked "Y" containing rules applicable to all PostOffice employees including peons. It contains the duties ofCashier's peons, one of which is referred to as "Assist ClosingRemittances." The work of the Cashier's peon in closing remittan-ces have been referred to in detail by this witness as well as witnessParipurnam.
The evidence of Paripurnam is to my mind strongly corrobora-ted by the Administrative Secretary Thangavelu who would havebeen fully aware of the duties and the general practice of the PostOffice, and the Cashier's division. There is further corroborationby witness Shanmugalingam as well as by the production of thedocument marked "Y" which refers to the duty of the respon-dent as the Cashier's peon to "Assist Closing Remittances" detailscf which are spoken to by the above mentioned witnesses. On theface of this strong array of evidence we find the respondent statesthat it was not part of his duties to attend to the work involved inassisting the closing of remittances.
At the inquiry it was open to this respondent to state what hisduties were, if they were not what the official witnesses in theirevidence outlined as his specific duties both by oral and documen-tary evidence.
The Court of Appeal, in setting aside the conviction of the appe-llant stated that the learned -trial judge had dealt with the appe-llant using the phraseology of Wijewardene, J. in the case of In reSeemonW where, the learned Judge stated that the petitioner hadtold the Court "deliberately something- different from what wasrecorded by him," and that he had reached the decision that thepetitioner had made a deliberate attempt to mislead the Court,and gave false evidence within the meaning of Section 188 of thePenal Code.
In this connection the Court of Appeal stated that the trialjudge had found that the appellant had given false evidencebased on the circumstances which fall short of the overridingprinciple that the power given to a trial judge is one which wouldonly be used when the judge is "clear beyond doubt" in thewords of Lord Oaksey in the case of Subramaniam v. the Queen ^
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cited with approval in Samaratunga v. the QjeenW. The com-plaint of the Court of Appeal is that "the learned trial judge hasnowhere said that the appellant's evidence is clear beyond doubtto be false evidence." In regard to this point we find that the trialjudge has at the very outset set out in his judgment that PeonSilvan Silva in giving evidence as a witness in the case had admittedhe was on duty at the Anuradhapura Post Office as the Cashier'speon on 20th September 1972, which is the day on which the rele-vant postal bag. to Maradankadawala was packed with currencynotes. He admitted that his hours of work were from 8.30 a.m.to 4.30 p.m., but denied that he performed any duties in connec-tion with the "closing of money remittances."
I have earlier in this judgment referred in some detail to theevidence of the officials of this post office, i.e. Paripurnam theCashier, Thangavelu the Administrative Officer, and Shanmugalin-gam who produced the "Official Instructions Guide," which setsout the duties of the employees, including that of the Cashier'speon who has to "Assist Closing of Remittances," the implicationof which was explained to the court in detail. It would thus beseen that the evidence of the Cashier Paripurnam is amply corro-borated by the other two official witnesses as well as by the rele-vant documents referred to earlier setting out the appellant'sduties which requires him. inter-afia, to stack the currency notes aswell as tie and seal the bags containing the cash. The trial judgeclearly stated that he did not base his findings on the fact that theappellant had gone back on his evidence. The item in regard towhich he found the appellant guilty was on material relating to hisduties in the Cashier's branch. As mentioned earlier the chargesolely relates to the appellant's duties as the Cashier's peon.
Reverting to the Court .of Appeal contention that the powergiven to a trial judge in a matter such as this could only be exerci-sed when the judge is, "clear beyond doubt" does not, I am sure,mean that his order is vitiated if he does not use those magicwords. I am certain that all that the Judicial Committee of thePrivy Council intended when they used that expression is that theevidence when examined intrinsically must lead to a irresistibleconclusion that the case against the accused is clear beyond doubt.That would not mean that no other adequate language or expres-sion cannot be used. The English language is possessed of a varietyof words and phrases which convey the same meaning. Hencewhen we find Wijewardene, J. stating that an appellant has toldthe Court "deliberately something different from what wasrecorded by him," and that he has reached the decision that thepetitioner made deliberate attempt to mislead the court and gave
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false evidence, it would mean nothing more than that Wijewar-dene, J. was satisfied beyond reasonable doubt of the falsity of theevidence given by the witness. By language such as this surely thejudge has satisfied the burden of proof required in a case of thisnature when the question is whether the witness was giving evi-dence falsely quite deliberately, in which event section 161 statesthat he should be convicted as for a contempt of Court. In thepresent matter the trial judge has adopted the language of Wije-wardene, J. which can well be regarded as acceptable.
In fact when the trial judge adopting Wijewardene, J's languagestates that the appellant had been "deliberately lying" would itnot surely be a far stronger expression of the guilt of the appellantthan the expression "clear beyond doubt." We disagree with thefinding of the Court of Appeal on this point.
It would then be seen that the learned trial judge has adequatelydealt with the principles pertaining to the burden of proof in acase of this nature, as well as in regard to the criticism on thequestion of the lack of corroboration of the witness Paripumamwho as shown by me earlier has his evidence amply corroborated.The third reason given for setting aside the conviction is that inthis instance it cannot be said that the statutory power has beensafely exercised. In support of this contention the Court of Appealjudgment sets out inter alia that:—
the witness is in the eyes of the judge an accomplice.
He is the brother of the accused and therefore under thedouble stress of loyalty to his brother and that of a shadowof guilt falling over himself.
All that the trial judge has really said which is alleged tobe false evidence is nothing more than a denial of havingassisted the Cashier in the packing and sealing of mail bags.
The judgment then sets out that "in a situation like that we donot think that it is a correct exercise of discretion on the part ofthe trial judge to have the witness tried for giving false evidence."It seems to us that reasons such as these are irrelevant and do notbear scrutiny. They are indeed insufficient to conclude that thestatutory power has not been safely exercised by the learnedjudge of the High Court.
On the material placed before us it would appear that the res-pondent in order to meet a possible point that the respondent's
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brother (the 1st accused) got a tip off from the respondent, deli-berately gave false evidence in regard to his official duties. LearnedCounsel for the respondent in making his submissions stated thatthe learned trial judge, in the course of his judgment, states thatthe accused-respondent had been the informant to his own brotherand that there was no evidence to support this finding. We findthat this was not the basis upon which the trial judge held thatthe accused-respondent was deliberately giving false evidence. Itwas also submitted that the evidence of Thangavelu did not cons-titute corroboration of the evidence of Paripurnam. This sub-mission is without merit for the reason that Thangavelu, who wasthe Administrative Officer attached to the Anuradhapura PostOffice had, in answer to Court, clearly stated what the duties ofthe accused-respondent were. In regard to this there can be nodoubt that his evidence detailing the procedure confirms theevidence given by Paripurnam, as shown by me earlier in thejudgment. The learned trial judge has in the course of his judgmentcarefully considered and detailed the relevant principles governingthis case. He correctly states, "Dealing with a case of this nature isa very rare and well considered step taken by a Court."
For the reasons stated we set aside the judgment and order ofacquittal and convict the accused of the charge. We accordinglyallow the appeal of the Attorney-General.
In regard to sentence we have considered the fact that therespondent, a public officer aged 32 years will lose his job. He hasapparently had a good record until this lapse occurred. In all thecircumstances we sentence the respondent to two years rigorousimprisonment suspended for an operational period of five years.In addition we impose a fine of Rs. 500/- in default three monthsrigours imprisonment. The High Court is directed to comply withsub-sections 4 and 6 of the Code of Criminal Procedure ActNo. 15 of 1979.
ISMAIL, J. — I agree..
RATWATTE, J. – I agree.
Appeal allowed.
Conviction by trial Judge approved.
Sentence varied.