116-NLR-NLR-V-71-THE-QUEEN-v.-H.-A.-C.-JAYASINGHE-and-another.pdf
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The Queen v. Jay curing he
1969Present: Wljayatilake, J.
THE QUEEN v. H. A. C. JAYASENGHE and another8. C. 113J68 (Western Circuit Assize}—M. C. Colombo, 48342
Evidence Ordinance—Section 27—“ In the custody of a police officer ”—Statement madeby accused to a police officer when in custody of (he Fiscal—Admissibility—Criminal Procedure Code, es. 122 (3), 126 (o), 153, 361, 362 (2), 429—Coroner—Hie power to remand a suspect to Fiscal’s custody—Courts Ordinance, s. 83.
At a trial before the Supreme Court, the prosecution sought to put in evidence,under section 27 of the Evidence Ordinance, a statement made by the 1staccused to a police officer during the time when he was in the custody of theFiscal after an order had been made by the Coroner remanding him to Fiscal’scustody.
Held, that the statement of the 1st accused, although it was made to a policeofficer, was not within the scope of section 27 of the Evidence Ordinance,because it was made at a time when the accused was in the custody of the Fiscaland not in the custody of a police officer.
Held further, that a Coroner has jurisdiction under section 83 of the CourtsOrdinance to remand a suspect to Fiscal’s custody.
WT.TAYATTT.ATrK!, J.—The Queen v. Joyaeinghe
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OrDER made in the course of a trial before the Supreme Court.Cecil Ounawardane, Crown Counsel, for the prosecution.Stanley TiUekeratne, with K, W. D. Perera, for the 1st accused.M. S. Azeez, (Assigned) for the 2nd accused.
March 6,1069. Wuayattlake, J.—
The alleged offence was committed on 9th August, 1967. The firstaccused was arrested at 1.15 pun. on the 10th August. On the order ofthe learned Magistrate, Colombo, Mr. A. H. M. Ismail, Coroner had heldan inquest op the 10th August and after his verdict at about 6 p.m. onthe same day, he had remanded both the first and second accused tofiscal’s custody. Thereupon, it would appear that the first accusedhad made a statement at 7 pjn. to Inspector Wijewardane at the PolioeStation. Learned Crown Counsel seeks to lead the evidence referred toat pages 60 and 64B of the non-summary proceedings marked as A, B,and C, under section 27 of the Evidence Ordinance. He has at the veryinception, very fairly and justly, drawn my attention to a case whichappears to be against him, namely, the judgment of His Lordship theChief Justice H. N. G. Fernando in Queen v. Sugathapala1 where,inter alia, it was held that the statement although made to a polioe officerwas not within the scope of section 27 of the Evidence Ordinance, becausethe appellant when he made the statement was not in the custody of apolioe officer, but in the custody of the Fiscal; and it was further heldthat a statement of the accused had been used in evidence in breach ofsection 122 (3) of the Criminal Procedure Code. However, Crown Counselseeks to distinguish the facts of the present case and he submits thatunlike in that case where the Magistrate remanded the Accused to Fiscalcustody, in the instant case the Coroner had no jurisdiction to remand thesuspects to Fiscal’s custody and that he had in purporting to do so, actedillegally. He has drawn my attention to sections 126 (a), 163, 361 and362 (2) of the Criminal Procedure Code. So that it is his submission thatalthough the Coroner purported to "remand” the suspects, theycontinued to be both legally and, in fact, in Police custody.
Mr. Stanley Tillakeratne, learned Counsel for the first accused, has drawn .my attention to section 83 of the Courts Ordinance which gives powerto an Unofficial Magistrate to exercise the jurisdiction of a Magistrate.Acting under section 429 of the Criminal Procedure Code, in order toclarify the position, I called Mr. A. H. M. Ismail, Coroner who held thisinquest and he has stated that invariably in the cases which come beforehim he either grants bail or remands the suspects and that in doing so,he acts under section 83 of the Courts Ordinance.
M1967) 6Q.N.L.B. 467.
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WIJAYA'illiA K Kt J.—The Queen cl Joyaetnghe
In myr opinion the submissions of learned Grown Counsel in this regardcannot be sustained and it is my view that the Coroner had the jurisdictionto remand the suspects. In the circumstances, it follows that the Polioehad recorded the statement of the 1st accused while he was in Fiscal’scustody.
. Learned Crown Counsel seeks to meet this situation by contending thatalthough he may have been under the de jure custody of the Fiscal,he was in the de facto custody of the Police. This would appear to be arather tenuous submission and I am not inclined to agree with him.Once a person is remanded to Fiscal’s custody one cannot question theillegality of the custody or the nature of the custody until and unlessthat order is revoked, or set aside. Crown Counsel also refers me to ajudgment by Basnayake, C.J. in the case of Regina v. Perera,1 whereit was held that even if the appellant was not in legal detention at thetime the statement was recorded by the Police, the evidence of the state-ment made by him could not properly be excluded on the sole groundthat he was illegally detained when he made the statement sought to beproved. His Lordship in the course of his judgment took the precautionof adding these words : “ we should not be taken as laying down thebroad proposition that evidence illegally obtained would under allcircumstances and in every case be admissible. Cases in which a Court ofLaw may properly exclude such evidence are conceivable. ” In the lightof the judgment of H. N. G. Fernando, C.J. in Queen v. Svgathapalawhich in my opinion has dealt with the question now before me, I do notthink the principle set out in the earlier case can be adopted in the presentcontext.
Learned Crown Counsel further submits that he is entitled to rely onthe conduct of the first accused by marking these passages as “ conduct ”and not as “ statements leading to discovery of a fact ”. I have carefullyscrutinised the passages referred to and in my opinion it would not bopossible to extricate the statements as such from the conduct of thofirst accused as they are so closely interwoven. The course suggestedwould amount to leading indirectly evidence which cannot be led directlyand it would clearly nullify the principle set out in Queen v. Sugathapala.In the circumstances, I do not think the Crown can be permitted tolead this evidence. Accordingly, I disallow the application of learnedCrown Counsel.
Application by the Croton to lead certain evidence disallowed.
1 (1955) 67 N. L. R. 35.