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Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice,Mr. Justice Wendt, and Mr. Justice Middleton.
THE KING v. FRANCIS PERERA et al.
P. 0., Kandy, 4,411.
(1st Kandy Criminal Sessions, 1906.)
•Confession—Specimensof handwriting taken while incustody—State-
ment—Inference of guilt—Penal Code, ss. 456 and 459—Evidence■Ordinance (No. 14 of 1895), ss. 17 and 26.
The accused, who were in police custody charged with forgeryof a cheque under section 456 of the Penal Code, and with fraudu-lently and dishonestly using the said cheque as genuine under.section 459, at the request of the Inspector of Police, wrote certainwords on a paper.
At the trial of the accused this paper ' was tendered in evidenceby the prosecution, but was objected to by the counsel for thedefence on the ground that the words on the paper amounted toaconfession. The objection wasover-ruled and the paper was
received in evidence.
Held, (on a case reserved), that the words written on the paperdid not amount to statements within the meaning of section 17 ofthe Evidence Ordinance and were therefore not confessions withinthe meaning of – section 26 of the Evidence Ordinance; and thatthey were properly received in evidence.
•Crown Case Reserved.
fJIHE case reserved by Wood Renton J. was as follows; —
“ 1. The accused Francis Perera and David Perera. were con-victed before me at the Kandy Criminal Sessions on the 8th instant,the latter of having fraudulently and dishonestly used as genuine aforged cheque on the National Bank of India for Rs. 686, (CeylonPenal Code, sections 456, 459); the former of having abetted the com-mission of that offence (Ceylon Penal Code, sections 102, 456, 459).I sentenced Francis Perera to ten years and David Perera to five.years’ rigorous imprisonment, but remanded them ‘Both to simpleimprisonment, pending the decision of the Supreme Court on thefollowing point of law, which I agreed, on the application of counselfor the defence, to reserve.
"2. With a view to connecting the accused with the forgedcheque and with certain letters alleged to have been used by themin negotiating it, the Crown tendered in evidence specimen oflandwriting taken from them respectively, while under arrest, byInspector Daniels.
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" 3. Inspector Daniels’ account of the circumstances under whichthese specimens were given is set out in full at pages 14 to 15of the copy of my notes of the evidence, accompanying this case.“For the present purpose it will suffice to say.—(1) that he askedthe accused to write certain names and words occurring in theincriminating cheque and letters; (2) that, according to him,they did so voluntarily, although Francis Perera. appears to havedisplayed considerable- nervousness, to have asked for brandy,and to have had some difficulty in finding a suitable pen; and(3)’ that it was not suggested, either in Inspector Daniels’ cross-examination or in the argument before me on the point of law,that any pressure had, in fact, been brought to bear upon theaccused in the matter.
“ 4. The specimens of handwriting above referred to are asfollows:—
( i.) El, a letter written by Francis Ptrera, to Mr. Daniels’ dicta-tion, in the same terms as the forged letter B2 in the record.
(ii.) E2, a-letter written by Francis Perera, also to Mr. Daniels’
' dictation, in the same terms as the forged letter C in therecord.
(iii.) H, containing one name written by David Perera (Rupe-Singhe) and several names written by Francis Perera.
“ 5. Counsel for the defence objected that these specimens ofhandwriting were one and all inadmissible in evidence, inasmuchas they amounted to ‘ confessions ’ made by accused personato a police officer while in custody (Evidence Ordinance, section 26).No authorities in favour of, or against, this objection were citedto me, and I over-ruled it after argument.
‘‘6. I told the jury that, while I regarded it as a very bad practiceon the part of the police to obtain evidence of this character fromprisoners under arrest, the documents in question were not ‘ con-fessions ’ under section 26, inasmuch as they were not ‘ statementswithin the meaning of section 17 of the Evidence Ordinance.
“ 7. The question is whether my ruling on the point mentionedin the two last preceding paragraphs of this case was right.
“ 8. Apart altogether from the documents objected to, there-is ample evidence to support a conviction as regards each prisoner.
“9. A certified copy of my notes of the evidence is submittedherewith.”
A. Drieberg, for the accused.—These specimens of handwriting,are statements, and suggesting, as they do, the inference of guilt
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1006. they amount to confessions. [Middleton J.—They do not suggestJfvne 21. the inference that the accused did commit the offence, but only— that they might have done so.] Even that inference is sufficientto bring them under the category of confessions. The words writtenby the accused ought to be taken in conjunction with the requestmade to them by the Inspector of Police.
VanLangenberg A. S.-G. (E. W. Jayewardene with him), for theCrown.—The specimens of handwriting cannot be considered asstatements. Taken by themselves they mean nothing. It is onlyby comparison with something extraneous that any inference couldbe drawn. The words written by the accused do not suggest theinference of guilt, but rather the contrary inference.
Cut. adv. vuIt.
21st June, 1906. Middleton J.—
In this case my brother Wood Benton has reserved for the opinionof two or more Judges of this Court, the question whether he wasiright in admitting in evidence against the accused, who ■ wererespectively convicted before him at the Kandy Criminal 'Sessions■of—(1) fraudulently and dishonestly using as genuine a false chequepurporting to have been signed by Alex. Wardrop (sections 456;and 459, Ceylon Penal Code); (2) abetting the commission of the:said offence (sections 102, 456, and 459) certain specimens of hand-writing obtained from the accused while under .arrest by the Inspec-tor of Police, which were tendered in evidence with a view to.connecting the accused with the forged cheque and with certainletters alleged to have been used by him in negotiating it.
It was argued before us that these were confessions made to apolice officer under section 25 of the Evidence Ordinance, No. 14of 1895, as being statements under section 17 suggesting the inference"that the prisoners were the persons who committed the offence withwhich they were charged.
It appeared that the accused were asked by %he Inspector towrite the names of the payee of the cheque, and also to write from.-dictation the words of a- letter which purported to have been written.and signed by the alleged drawer of the cheque, whose name thereinwas spelt “ Alex. Wardrop,” and which.letter was presented to theperson who cashed the cheque by one of the accused.
In doing so one of the accused, Francis Perera, wrote the payee’s-name as “ Wardro ” not completing it with a “ p and spelt thepayee’s first name as spelt in the cheque “ Hendrick ” without a ”c.”
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It was contended that these were statements by that accusedfrom which an inference might be drawn that he was the personwho forged the cheque and therefore might be the person whoused it.
No cases on the point before the Court were quoted by eitherof the learned counsel who appeared.
In “ The Imperial Dictionary ” a statement is defined to be “ anexpression of fact or of opinion ” and also, as in “ Webster’s Diction-ary,” as “ a formal embodiment in language of facts or opinions.”
It seems to me difficult to hold that in writing the names ofpersons or a letter from dictation the accused was making a state-ment within the meaning of the definition.
If, as was suggested by my Lord, the accused had been asked toblacken his thumb and make an impression of it on a piece of paper,could this be considered a statement from which it might be inferredthat he had committed a burglary, because there was a thumb markon a window pane of the house broken into?
It seems to me that the writing of these words and letter wasmerely the creation of facts, which standing alone were of no proba-tive value, but which, when coupled or compared with some otherfacts in the case, might suggest an inference one way or the other,and until that comparison or conjunction was made no inference arose.In my opinion, therefore, the evidence was properly admitted.
At the same time I would desire to join with my brother WoodKenton in his severe condemnation of the action of the PoliceInspector in endeavouring to obtain from an accused person underarrest evidence incriminating himself.
Having read through the evidence as recorded by my learnedbrother, I fully agree with him that, if documents H, El, and E2had not been admitted, there was ample evidence to support theconviction.
I concur with the judgment of my brother Middleton. I cannotbring myself to the conclusion that the accused, by supplying aspecimen of his. handwriting and spelling, made a statement withinthe meaning of the Evidence Code.
By a statement, I understand, some expression of a fact or opinionby means of words, writing or otherwise. Here the value of thepapers produced consisted hot in their meaning, not in the expressionof any fact or idea, but solely in certain physical characteristics.
To regard such a paper, even if supplied at the request of a policeofficer, as a statement would be to strain unduly the language of the
LasobplesA. 0. J.
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Evidence Ordinance. I also agree with my brother's view of theaction of the police in requiring the accused to write these papers.It is a sound principle that an accused person should not be com-pelled to furnish evidence against himself.
I agree with the rest of the Court in thinking that the documentsin question capnot be regarded as constituting “ confessions ” withinthe meaning of section 17 of the Evidence Ordinance, not being“ statements ” at all. They are not the embodiment in languageof any facts or opinions. The mere fact that they suggest aninference of guilt is not enough.
THE KING v. FRANCIS PERERA et al