The King v. James Singho and Wijemanne[Court of Criminal Appeal.]
1941Present: Howard CJ., Soertsz and Keuneman JJ.
THE KING v. JAMES SINGHO AND WIJEMANNE31—M. C. Panadure, 10,635
Police Headman—Statement made to Police Headman—Not an inquirer orPolice Officer within the meaning of Criminal Procedure Code, s. 122 (3)—Failure of accused to disclose defence—Comment by trial Judge.
A Police Headman is not a Police Officer or inquirer within themeaning of section 122 '(3) of the Criminal Procedure Code.
In this case the defence of the accused was an alibi and the learnedJudge in his charge said—“ third accused himself when questionedin the lower Court said * I am not guilty ’. So the Crown did not knowwhat his actual defence was going to be ”.
The latter statement was not accurate as it appeared from the cross-examination of the headman that the third accused told him that he wasat his well in his garden when he heard cries and went up to the sceneof the offence.
Held, that the misdirection was of such a character that the convictioncould not be allowed to stand.
Held, further, that it was a proper direction to a jury in such a caseto take into consideration that the accused had mentioned other personswho were in a position to support his alibi and that those persons had notbeen called.
PPEAL from a conviction before a Judge and Jury at the 2ndWestern Circuit.
M. T. de S. Amerasekere, K.C. (with him Siri Perera and H. W.Jayawardene), for accused—appellants.—The trial Judge should not havecommented adversely that the second and third accused failed todisclose their defence before the Magistrate. The question of non-disclosure of the defence at the earliest opportunity was consideredin R. v. Don Robert alias Beera' where the English cases of Naylor Littleboy *, Parker and Smith and Smith ‘ were discussed. Materialprejudice was caused to the appellants by the damaging statementin the summing-up that they had not disclosed their defence of alibi atthe very outset' and that they did not call witnesses to establish it.In the case of the third accused in particular the comment of theJudge was not warranted in fact because he had mentioned to the Policethat he was bathing at the well with Piloris. The Judge should haveascertained this fact from the Information Book. Smith and Smith(supra) is directly applicable^ to the facts of this case.
The admission of the statement made by the witness Gunapala to theheadman was contrary to the provisions of section 122 (3) of the CriminalProcedure Code. A police headman is a police officer. See Hamid v.Karthan *; Vidane Arachchi of Kalupe v. Appu Sinno7; Baby Nona v.Johana Perera * ; Binduwa v. Suriya
» (1940) 42 N. L. R. 73.925 Cr.App. R. 119.
* 23 Cr. App. R. 177.*(1917)4 C. W. R. 363.
5 24 Cr. App. R. 192.•(1921)22 N. L. R. 412.
* 24 Cr. App. R. 2.9(1937)S C. L. W. 65.
» (1926) 7 C. L. Rcc. 175.
-J. Sfc B 17628 (5/52)
HOWARD C.J.—The King v. James Singho and Wijemanne
E. H. T. Gunasekera, C.C., for the Crown, called upon to address on thefirst ground of appeal only.—The silence of the accused in the Magistrate’sCourt may be employed as a test of the truth of the defence which heputs forward at the trial, and comment may properly be made providedthat it is made with care and fairness to the accused—R. v. Don Robertalias Beera (supra).
There is a great difference between using the silence of the accused asevidence against him and using it to test the weight of the defence—Littleboy (supra).
The cases of the second and third accused should be consideredseparately.
[Howard C.J.—We do not want to hear you with regard to thesecond accused.]
With regard to the third accused, his only words to the Magistratewere “ I am not guilty *-It cannot be said that the Crown was thusinformed of the defence which would be put forward at the trial. Nordid the accused 'mention in his evidence at the trial that he had disclosedhis defence earlier. It has, however, to be conceded that the Crownwas not taken by surprise by the defence in view of the fact that theaccused had mentioned about it to the headman and the Police.
M. T. de S. Amerasekere, K.C., replied.
Cur. adv. vult.
July 7, 1941. Howard C.J.—
Two grounds of appeal have been raised by Mr. Amerasekere on behalfof the appellants in this case. These grounds are set out in the notice ofappeal as follows : —
That the trial Judge should not have commented to the Juryon the failure of the petitioner to disclose his defence at the inquirybefore the committing Magistrate;
That the trial Judge erred in law in permitting the statementmade by the witness Gunapala to the headman to be led in evidence.
With regard to ground (b) it is contended that the statement made by
Gunapala to the headman was a statement made to a Police Officer orinquirer under Chapter XII. of the Criminal Procedure Code and in viewof the provisions of sub-section (3) of section 122 could not in spite of theprovisions of section 157 of the Evidence Ordinance be given in evidence.Various cases were cited by Mr. Amerasekere in supposed support of thiscontention. None of them, however, are material. In Baby Nona v. JohanaPerera1 it was held by Soertsz J. following The King v. Kalu Banda',which was also- cited, that a statement which was a confession made to aPolice Headman was inadmissible in evidence by reason of section 25 ofthe Evidence Ordinance. Moreover in Vidane Arachchi of Kalupe v.Appu-Sinno‘, a confession made to a Mudaliyar was for the same reasonheld to be inadmissible. These decisions are authority for the propositionthat, in so far as section 25 of the Evidence Ordinance is concerned,a Police Headman is in the position of a Police Officer. They are not,however, authorities for the contention that a Police Headman is a Police
1JC.I. ir. Go.’■ 22 X. L. R. 412.3 15 X. L. R. 422.
HOWARD C.J.—The King v. James Singho and Wijemanne387
Officer for the purposes of section 122 (3) of the Criminal Procedure Code.In that sub-section the use of a statement “ made by any person to aPolice Officer or an inquirer in the course of any investigation under thisChapter ” is prohibited except under certain conditions. The headmanin this case had not been appointed an inquirer under the provisions ofsection 120. To be a “ Police Officer in the course of an investigationunder this Chapter” he must by virtue of section 121 (1) have been anofficer in charge of a police station who keeps an “ Information Book ”.It is impossible in these circumstances to contend that the Police Headmanwas such a person or that he was conducting an investigation underChapter XIL
Ground (a) has received our most careful consideration and with partic-ular reference to various English authorities to which our attentionhas been invited. In-this connection we have examined the case of eachappellant separately. With regard to the second accused the passagein the charge to which exception is taken is phrased as follows :—
“ He says he was never at this scene. Of course, if you accept hisstatement that he was in Somapala’s boutique at this time, then thatclearly proves that he could not have been here at this scene. Askyourselves whether you are prepared to accept that statement or evento say that his evidence creates a reasonable doubt in your mindsas to the truth of Gunapala’s statement. These accused in theMagistrate’s Court are asked when the case for the prosecution is closed,whether they wish to say anything. It is not binding on them to sayanything but they are given the opportunity of saying anything.What he stated then was, ‘ I am not guilty ’. He did not mentionany of the witnesses. He did not mention anyone as a witness whowill prove his innocence. Of course a man cannot be punished becausehe does not come out with his defence in the lower Court or does notmention his witnesses. But when he makes this statement herethat he was in Somapala’s boutique at the time, that there were fouror five others, but does not summon them as witnesses, those are matterswhich you may take into consideration in considering how far you canact on that evidence he gives here. If in spite of all that you areprepared to accept his evidence, then, of course, his evidence cutsat the very root of the case for the prosecution against him and he isentitled to an acquittal.”
Reading this passage as a whole, we are of opinion that the learnedJudge wanted the Jury, when considering what weight could be attachedto the evidence of the second accused, to bear in mind that, althoughhe has said he was at the time of the commission of the offence inSomapala’s boutique and that there were four or five others there at thesame time, yet he has not summoned those persons as witnesses. Wedo not consider that the passage to which I have referred goes furtherthan this. Nor does it invite the Jury to draw an adverse view of hisevidence from the fact that he did not disclose his defence in the lowerCourt. It was, however, quite proper for the learned Judge to pointout to the Jury that the second accused had mentioned that other personswere in a position to support his alibi and to take into consideration
HOWARD C.J.—The King v. James Singho and Wijemanne
when considering his defence that those persons had not been called togive evidence. We are, therefore, of opinion that there is no substancein ground (a) so far as the second accused is concerned and his appeal isdismissed.
With regard to the third accused, the passage in the charge to whichexception is taken is phrased as follows : —
“As for the statement of the accused, do you accept his evidence?Does that evidence even create a reasonable doubt in your minds asto the truth of Gunapala’s statement? If it does create a reasonable,doubt give the benefit of the doubt to the accused and acquit him.But does it create a reasonable doubt? That is the question you mustask yourselves.
I might say that a reasonable doubt is not any kind of doubt. Itmust be such a doubt as would influence you in the more importantmatters of your life. Dees this evidence of the third accused createthat amount of reasonable doubt in your minds as to the truth of theevidence given by Gunapala?
The third accused himself when questioned in the lower Court said‘ I am not guilty ’. So,theCrown didnotknow what his actual
defence was going to be.Hecomes hereandsays that he was at the
well bathing. He says Piloris was there bathing with him. (ThatPiloris would be a very material witness in the case.) Well again thefact that he did not say that in the lower Court and the fact that hedid not call Piloris here do not necessarily prove his statement herethat he was bathing at the well is untrue. I suppose as reasonablemen you will think that these are matters which are worth consideringwhen you are deliberating as to the verdict you should reach.”
In this passage the learned Judge invited the Jury, when consideringtheir verdict and in particular whether the statement of the third accusedcreated a reasonable doubt in their minds as to the truth of Gunapala’sevidence, to bear in mind(a)that he didnotsay in the lower Court
that he was at the well bathingwith Pilorisand(b) that he did not call
Piloris as a witness. We think that the comment with regard to (b) was"quite proper and no exception can be taken to it. With regard to (a)it must also be borne in mind that the learned Judge has also said that“ the third, accused himself when questioned in the lower Court said‘ I am not guilty ’. So, the Crown did not know what his actual defencewas going to be ”, This latter statement is not accurate inasmuch as itappears from the cross-examination of the headman that the third accusedtold the latter that he was at his well in the garden when he heard criesand went up to the scene of the offence. The information book alsodisclosed this fact and Crown Counsel has confirmed it that the Policewere informed by the third accused that he was bathing at the well andPiloris was with him. The question that arises for our decision is whetherin view of this comment by the learned Judge on the failure of the thirdaccused to disclose his defence when charged in the lower Court coupledwith the inaccurate statement that the Crown did not know what hisdefence was going to be, the conviction can be allowed to stand.Mr. Gunasekera has argued that the statement with regard to the
HOWARD CJ.—The King v. James Singho and Wijemanne
knowledge of the Crown was accurate as until the third accused gaveevidence in Court his defence was not known. We cannot accept thisargument as the Jury would obviously understand this statement tomean that the third accused had not until his trial made mention of thefact that he was at the well. The English authorities were consideredby this Court in R. v. Don Robert alias Beer a' when it was held that therewas no misdirection in the Judge, whilst pointing out to the Jury thatthe accused had failed to disclose his defence before the Magistrate,proceeding to state that it was not obligatory upon the accused to sayanything and that his failure to do so did not mean that the defence putforward at the trial was false. In his judgment in this case Moseley S.P.J.distinguished it from R. v. Smith and Smith * from the fact that in the lattercase the prisoners, whilst maintaining silence before the Magistrate, hadeach previously given his answer to the Police and that answer was beforethe Court. It, therefore, could not be said that the defence of theprisoners in R. v. Smith and Smith (supra) was belated. 'In R. v. Littleboy 1the principle laid down in R. v. Naylor * was explained and it was statedthat it was not intended to lay down the proposition that a Judge maynot, in a proper case, comment on the fact that the defence has not beendisclosed on an earlier occasion. Observations, however, upon thefailure to disclose a defence at some date earlier than the trial have to bemade “ with care and with fairness to the accused in all the circumstancesof the case”. The law was still further clarified in R. v. Smith and Smith(supra) where Singleton J. in giving the judgment of the Court stated asfollows : —
“Further, in one passage of the summing-up, the Acting DeputyChairman said : ‘ Then again, when they were before the Magistrate,when they were asked if they had anything to say, they had an absolutedefence if it is true : ‘ I never received these things, they have neverbeen in my possession except as a bailee. I let the premises to thosepeople to store the things for four shillings …. not a wordwas said ’. That follows a passage in which he had pointed out thatnot a word had been said by Smith, junior, when he was seen by thePolice Officer. According to the evidence given by smith junior,at the trial, a great many words had been said, and he had told theofficer what had happened. Having commented inaccurately on thatpart of the case, the Acting Deputy Chairman proceeded to tell theJury that both prisoners had said nothing when they were before theMagistrate. They were entitled to say nothing. Each had givenhis answer to the Police, and each was represented at the Police Court.The fact that they said nothing at that stage ought not to have beenused against them in the summing-up. We think that there was amisdirection in that respect also.
On all these grounds we feel that there is no course open to thisCourt except to allow the appeals and quash the convictions of bothappellants. ”,
We find ourselves unable to distinguish the present case from that of
R. v. Smith and Smith (supra). In both of them the summing-up made it
1 42 N. L. R. 73.3 24 Cr. App. R. 192.
3 25 Cr. App. R. 119.* 23 Cr. App. R. 177.
KEUNEMAN J. Karunawathie v. Wimalasuria
appear to the Jury that the first mention of the defence put forward bythe accused was at his trial and therefore it was belated. To use thephraseology employed in Littleboy’s case (supra) we do not think thatthe comment can be said to be fair to the third accused.
We have next to consider whether the misdirection was of such acharacter that the conviction cannot be allowed to stand. The caseagainst the third accused was based on the evidence of Gunapala and thedying deposition of the deceased. It was not one of overwhelmingstrength. Moreover the fact that the third accused appeared on thescene in the circumstances deposed to by the witness Prematilleke andthat the latter deputed him to inform the headman of what had occurred,lend weight to his plea of innocence. The case against the third accusedon the whole of the evidence cannot, therefore, be regarded as particularlystrong. It is in these circumstances impossible to say what effect themisdirection in the summing-up had on the minds of the Jury. Theappeal must, therefore, be allowed and the conviction and sentence ofthe third accused quashed. We do not think that this is a case in whicha new trial should be ordered.
Conviction of 3rd accused quashed.Conviction of 2nd accused affirmed.
THE KING v. JAMES SINGHO AND WIJEMANNE