The King v. Kiriwasthu.
Present: Abrahams C.J., Hearne and Keuneman JJ.
THE KING v. KIKIWASTHU et al.
38—P. C. Mat ale, 22,162.
Evidence—Confession to Police Officer—Inadmissible to prove that the accusedcontradicted himself—Criminal Procedure Code, s. 122 (3)—EvidenceOrdinance, s. 25.
A confession made to a Police Officer is inadmissible as proof againstthe person making it whether as substantive evidence or in order to showthat he has contradicted himself.
HE two accused were charged with having committed murderand with having caused evidence of the commission of the offence
of murder to disappear and tried before a Judge and jury at the MidlandAssizes. During the course of the trial the Counsel for the secondaccused wanted to elicit from the second accused in the course of hisexamination-in-chief portions of the statement made by him to a PoliceSergeant under section 122 of the Criminal Procedure Code, 1898. TheCounsel for the first accused suggested that the whole should be putto the second accused. When the statement was put to him, he admittedportions of it whilst he denied the rest. At the close of the defencethe learned Judge permitted Crown Counsel to recall the Police Sergeantto discredit the evidence of the second accused. The jury returned aunanimous verdict finding both accused guilty of murder.
The Attorney-General acting under the provisions of section 355 (3)stated a case and submitted two questions of law, which are set outm- the judgment of His Lordship the Chief Justice.
H. V. Perera, K.C. (with him J. R. Jayawardana and C. C. Rasaratnam),for the two prisoners.—The questions of law to be decided are (i.) whethera confession made to a police officer could be used to discredit the storygiven by him in his own defence, and (ii.) whether the second accusedcould give oral evidence with respect to what he told the police officeror whether it could only be proved by the written statement taken down. by the police.
Section 25 of the Evidence Ordinance says that no confession made toa police officer can be proved as against the accused.
[Abrahams C.J.—Can it not be proved in his favour ?].
No. Confessions are tainted and the prohibition is absolute. Themere fact of a confession Would prejudice the jury. A tainted statementwhich the Legislature had discredited cannot be used to discredit theaccused. A statement recorded under section 122 of the CriminalProcedure Code is a mere record of an investigation. The person whomakes the statement does not take the responsibility of testifying to theaccuracy. There is a distinction between a statement signed by a personand a record of a statement. Sections 91 and 92 of the EvidenceOrdinance make the distinction clear. Once it is signed he adopts it tobe his statement. -The statement under this''section must not be signed.[Abrahams C.J.—What about section 122 (3) ?]
It must be read with section 25 of the Evidence Ordinance. Thedocument can be used only for. the purposes mentioned in section 122.40/23
ABRAHAMS C.J.—The King v. Kiriivasthu.
It cannot be used as evidence as held in Muthukumaraswami Pillai v.King Emperor The primary object of that section is to get a record.The Indian Courts had held that oral evidence, of the statement could begiven. Section 145 of the Evidence Ordinance does not apply. Ifsection 122 (3) of the Criminal Procedure Code-fwas absent, the provisionsof the Evidence Ordinance would apply. That section indicates thatoral evidence could be given. The statement does not fall withinsection 91 of the Evidence Ordinance. It is relevant under section 8 ofthe Evidence Ordinance though its probative value may be very small.The eifect of these sections was considered in Baby Nona v. Johana Pererar.It was held in The King v. Gabriel*, that oral evidence could begiven by the police officer. A deposition is on a different footing becauseit is read over and signed by the witness. Then it becomes his act.Maxwell v. The Director of Public Prosecutions' and the case of Frederickv. Rodley * were cited.
J. W. R. llangakoon, K.C., A.G. (with him D. W. Fernando, C.C.),in support of the application. The statement was used to impeach theprisoner’s evidence. It was allowed under section 155 of the EvidenceOrdinance. Section 25 prohibits the Crown using a confession againstthe interest of the accused. See Gulab v. The Crown*. There is noprohibition on the Counsel for the accused using it. A confession madeto a person other than a police officer can be proved against the accused.
Prior to 1889 there was no special procedure for the investigation ofcrime though investigations were made' under the Police Ordinance.From 1889 to 1896 power was given to the Presidents under the VillageCommunities Ordinance, 1889. By the Repression of Crime Ordinance,No. 15 of 1896, power was given to inquirers to investigate withoutadministering an oath or affirmation. Then in 1908 the sections underreview were added to the Criminal Procedure (jode.
If there is other evidence to support the- conviction, the Court has thepower to order a retrial as held in The King v. Pila'.
1Cur. adv. vult.
March 15, 1939. Abrahams C.J.—
In this case the Attorney-General acting under the provisions ofsection 355 (3) of the Criminal Procedure Code has submitted for ourconsideration two – questions of law that arose on the joint1 trial of twoprisoners who were charged (i.) with having committed murder, and (ii.)with having caused evidence of the commission of the offence of murderto disappear. The jury returned a unanimous verdict finding bothprisoners guilty of murder. They were accordingly sentenced to death.No verdict was returned on the second count as Crown Counsel, accordingto the usual practice, informed the Jury that if they found the prisonersguilty on the first count he would not ask for a verdict on the second count.
It emerged during the course of the trial that the Police Sergeantwho investigated the crime and todk ihtb custody the two accusedwho had already been arrested by the Arachchi, took down in writing a
(1912) I. IR. 35 Madras 397.* (1935) A. C. 309, at. p. 233.
(1937) S C. L. W. 60.■’ (191$) 9 C. A. R. 6.9, at p. 76.
(1937) 39 N. r.. 11. 33, at p. 42..* A. I. R. (1923) Lahore 315.
7 (1912) 15 N. I.. R. 453.
ABRAHAMS C.J.—The King v. Kiriwasthu.
statement made by the second ascused. PresumAly, in doing so,he acted under the provisions of section 122 (1) of the Criminal ProcedureCode, though in disregard of the provisions of that section the signatureof the second accused was affixed to the statement. The first accusedat the trial did not give evidence or call any witnesses. The secondaccused gave evidence, and; during the course of his examination-in-chiefhis Counsel asked him to state what he had told the Police Sergeantwhen "He* was taken into. custody. Thereupon Soertsz J.. who was the.presiding Judge, pointed out to Counsel that when the Police Sergeantwas m the witness-box giving evidence jao _,beb4lf .<&£,. the.CrQwn, noattempt Was made to elpTfrom himta.^.secon'd .
jaccUyWl taken down by him. The learned Judge said that, in those' circ'Uflistances,evidence given by that accused in regard to the
statement taken down by the Sergeant would be secondary evidence ;and not the best evidence, and he requested Crown Counsel to giveto the defending Counsel a copy of the statement recorded by theSergeant so that he might, after perusing it, decide whether or not heshould elicit the statement from his client.
After perusing the statement of the second accused, his Counseldesired to read only portions of it to the second accused and leave theother portions out. At that stage, the Proctor who represented thefirst accused indicated that it would not be fair merely to select portionsof the statement because, if the whole of the statement was put in,the first accused could rely on it to show that the second accused must betreated as an accomplice in the murder. The learned Judge, therefore,ruled that Counsel should elect either to put'the entire statement to thesecond accused or not question him at all on the contents of that state-ment. Counsel fpr the second accused, after consideration, electedto put to the second accused the entirety of the statement. The secondaccused admitted having made certain parts-of the statement and deniedthe rest. Thereafter, the second accused was cross-examined both bythe Proctor for the first accused and by Crown Counsel.
At the close of the defence, Crown Counsel moved to recall the PoliceSergeant to show that the second accused had made a different statementto the Sergeant. The learned Judge permitted Crown Counsel to provethe whole of the statement, not, he said, as substantive evidence of anyfact stated therein and denied by the accused, but solely for the purposeof impeaching his credit as a witness, and in his charge to the Jurythe learned Judge gave an emphatic direction to them not to treat theportions of the statement said to have been made by the second accused .to the Police Sergeant but not admitted by him at the trial, assubstantive evidence against him, but to use them, if at all, to discredithim. He also directed them not to use the statement for any purposeat all as against the first accused. The questions submitted for ourconsideration by the Attorney-General are these: —
“ (i.) Was Counsel for the second prisoner entitled to ask his clientto state orally the statement made by him to the Police Sergeant,when it was in evidence that that statement was taken down inwriting by the Sergeant and signed by the second prisoner,unless the document itself was put in evidence ?
ABRAHAMS C.J.—The King v. Kiriwasthu.
(ii.) Was the statement of the second prisoner to the Police Sergeantwhich amounted to a direct confession that he was guilty of thecharge relating to the disposal of the body of the deceased,and which also suggested the inference that he and the firstprisoner were associated together in killing the deceased,rightly admitte.d in evidence for the purpose of impeaching thecredit of the second prisoner ?”
Mr. H. V. Perera, K.C., who with Mr. J. R. Jayawardana was goodenough to appear pro Deo on behalf of the accused dealt with thesequestions in the reverse order. In view of the decision which we areabout to give, we shall deal with the second question only. Mr. Pereraargued that the evidence of the Police Sergeant, placing before the Juryboth portions of the statement of the second accused which amountedto a confession, was inadmissible for the reason that it violated theprovisions of section 25 of the Evidence Ordinance which reads, “Noconfession made to a police officer shall be proved as against a personaccused of any offence ”, and he contended that the fact that the secondaccused had himself given in evidence certain portions of that statementand denied the rest, had not justified the admission of the rest of thestatement. We think it proper to say here that without giving anyopinion upon the obligation or otherwise of the second accused to putbefore the Court his written statement, the correct course which shouldhave been directed to be followed was not that the accused should giveevidence of what he alleged that he told the Police Sergeant, which,in our opinion, is not sanctioned by any provisions of the law of evidence,but that he should have called the Police Sergeant and invited him,under the provisions of section 157 of the Evidence Ordinance, tocorroborate his testimony. It may be that if that course had beentaken, the difficulties that subsequently arose would have been avoided.
The learned Judge’s justification for permitting the Police Sergeantto give evidence of the second accused’s incriminatory statement is veryconcisely expressed in his summing-up. He says this, “Now ordinarily,a statement made by an accused person to a Police Sergeant or to anypolice officer and later denied by him, cannot be used as substantiveevidence. This is what I mean. Suppose A has told a police officer:
‘ I struck B with a club He comes into Court and in the witness-boxsays:‘ I was never near the place. I did not see B on this day atN all.
I did not strike him with a club ’. Then the Crown is entitled toconfront him in the witness-box with this statement which he haspreviously made :‘ I struck B ’. Then, suppose he denies that he made
that statement to the Police Sergeant, and the Police Sergeant swearsthat he made that statement; in those circumstances you cannot takethat statement as a 'piece of substantive evidence. All that the-evidenceserves to do is to discredit the man as a worthless kind of witness, as aman who cannot be relied upon. In order to convict him you' havegot to look for independent evidence; in other words you cannot takethis evidence, which the police officer swears the witness made to himand which the witness in the witness-box denies, as substantive evidenceof the witness, because the evidence that applies in a Court of law is theevidence which the witness chooses to give upon oath or affirmation
ABRAHAMS C.J.—The King v. Kiriwasthu.
and subject to cross-examination. That is quite clear law. You cannotmake use of a statement made by a witness and subsequently deniedby him as substantive evidence. Now, that is why I say a' difficultyarises in this case as to how to regard this statement which has beenbrought into this case by the second prisoner himself and not broughtinto the case by way of being used to contradict the second prisonerin the box when he gave evidence. But, I think, out of an abundance ofcaution and in order to be as generous as possible towards the secondprisoner, I would invite you not to treat that statement recorded by thePolice Sergeant Fernando where portions of that statement have beenimpeached by the second prisoner—not to regard those impeached,portions as substantive evidence of the prisoner, but you may use thatstatement for the purpose of saying :‘ Well, we cannot pay much regard
to this man when he says this or that because we find that he is shownto have said different things at different times ’. You can use that todiscredit him ”.
We must observe upon these remarks of the learned Judge that it isnot accurate to say, “You cannot make use oi a statement' made by awitness SfiET Subsequently denied by him as substantive evidence”,beciuSb had tK!§' confession been made to a person not a police officerit could manifestly have been used not to contradict but as substantiveevidence of Ife-truth- and it is only because the confession wasA
police officer that there is a bar to its proof. The learned Judge appearsif we may say so, to have endeavoured to identify a statement made byan accused person which is, if there is no statutory bar to its admission,admissible in evidence against the person making it, with a statementmade by a witness in the case, which statement that witness subsequentlydenies and which, therefore, as the learned Judge properly says, can onlybe employed to show that the witness is unreliable because he is inconsis-tent. We are of the opinion that a confession made to a police officeris inadmissible as proof against the person making it whether as substan-tive evidence or in order to show that he has contradicted himself. Theobservations of the learned Judge would, if acceptable, compel us totreat section 25 of the Evidence Ordinance as if it read as follows: —
“ No confession made to a police officer shall be proof as against a'person accused of any offence as substantive evidence, but any suchconfession may be admitted in evidence if the accused gives evidencein contradiction of such confession in order to impeach his credit byshowing that he has made two contradictory statements and is there-fore inconsistent”.
We can find no warrant for expanding the terms of section 25 in thismanner. It would obviously be dangerous to expect a Jury with aconfession before them, no matter how much it was emphasized in thesumming up that the confession must not be taken as true, not to drawthe ordinary inference one draws from an admission of guilt that theperson making such an admission is in fact guilty.
We are of the opinion that in view of the wrongful admission of a con-fession by the second accused, the Jury not only may have been, butvery probably were, influenced against both of the accused, consideringwhat the terms of that confession were. That in such circumstances
HE ARNE J.—Karim v. Ahamed Lebbe & Company.
the conviction cannot stand is obvious. The question then is whatother order we should make in addition to quashing the conviction.As regards the second accused, we think that he is entitled to be acquittedfor there was very little against him beyond the confession as regards thecharge of murder. As regards the first accused, however, there was aconsiderable volume of evidence direct and circumstantial against himupon which, had it not been for the confession of the second accused,the Jury might well have convicted. As we have only the dry bonesof the case in front of us, so to speak, we cannot say what impressionthe witnesses made on the Jury. Under section 355(3) of the
Code, under which we are acting, we may reverse, affirm or amend thejudgment or make such other order as justice may require, and thiswide power has been held to include the power to direct a new trial in aproper case, see The King v. Pilot*. We think then that in view of thevolume of evidence referred to above, the charge of murder against thefirst accused should be tried out and we direct a new trial accordinglyto take place before another Judge and a different Jury. The accusedwill be remanded to the custody of the Fiscal for that purpose.
Hearne J.—I agree.
Keuneivian J.—I agree.
THE KING v. KIRIWASTHU et al