BASNAYAKE, C.J.—The Queen v. Martin Singho
[In the Court of Criminal Appeal]
. Present: Basnayake, C.J. (President), Herat, J.,and Abeyesundere, J.THE QUEEN v. H. MARTIN SINGHOAppeal No. 49 of 1963, with Application No. 508. 0. 121162—M. G. Colombo, 7343/B
Confession recorded by Magistrate—Voluntary nature of such statement—Questionof fact for jury to decide—Criminal Procedure Code, ss. 134. 244 (I) (c), 245 (c)—Evidence Ordinance, ss. 21, 24, 25, 26—Summing-up—Duty of Judge notto refer to any evidence given in absence of jury.
The question whether a confession recorded by a Magistrate in terms ofsection 134 of the Criminal Procedure Code was in truth voluntarily made isa question of fact for the jury to decide. The fact that the trial Judge has todetermine that very question of fact before he permits the evidence of theconfession to be given does not entitle him to withdraw that question fromthe jury.
The Judge is not entitled to refer in his summing-up to statements made tohim by an accused person in the course of a preliminary inquiry held in theabsence of the jury. The jury are not free to act on evidence not given beforethem.
y.PPEAL against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with M. L. de Silva, P. O. Wimalanaga andK. Charavanamuttu (assigned), for Accused-Appellant.
S. S. Wijesinha, Crown Counsel, for Attorney-General.
Cur. adv. vult.
July 27, 1963. Basnayake, C.J.—
The accused in this case has been indicted with the offence of murderand by a verdict of five to two found guilty and sentenced to death.
The oral testimony at the trial established the fact that the accusedwas not at the scene of the murder on the night of the alleged offence,and the learned Commissioner directed the jury thus :
“ … .So you are left in the unfortunate position of having all thewitnesses who testified before you as persons whom you may consideras unworthy of credit. If that is the view you take, in so far as oraltestimony is concerned on relevant circumstances, there is no reliableevidence.”
BASNAYAKE, C.J.—The Queen v. Martin Singho
Learned counsel made no complaint against that part of the direction,but he submitted that the learned Commissioner in directing the juryto accept as evidence against the accused a statement made by him tothe Magistrate under section 134 of the Criminal Procedure Cod© withdrewfrom the jury the question whether it was voluntarily made or not,and he said—
The question whether this statement is a competent statement,is a voluntary statement, to be put before you in evidence is a matterthat I have to decide and you will recall that I decided that when youwere away from the jury box. The question of competency and thevoluntary nature of the statement made by the accused was decided byme and the statement was put to you, but that does not absolve youfrom certain duties in regard to this statement.”
Then he went on to refer to certain matters deposed, to by the Magistrateas to the manner in which the statement was recorded and the precautionsthat were taken in recording it, and said—
“ All that procedure was gone through in order that you may takecognizance of the facts that were deposed to and any other fact whichwas given in evidence before you in order to decide what is yourduty in this ease, namely, what weight can we place on the contentsof this document. Is it a truthful document, the truth being notthat he made the statement but that what he deposed thereto is infact the truth ? This matter you will have to decide. In order todecide that you will have to take all the evidence led in this Courtbearing upon this matter.”
A statement recorded under section 134 of the Criminal ProcedureCode does not become admissible in evidence merely because it is recordedby the Magistrate under that section. To be admitted as evidence itmust be relevant under the Evidence Ordinance. A confession beinga species of the genus admission, is relevant and may, under section 21of the Evidence Ordinance, be proved against the person who makes.it, unless it is a confession which is barred by sections 24, 25 and 26 ofthat Ordinance. Under section 134 a Magistrate may record statementsmade not only by accused persons but by others. He may recordstatements which are confessions and statements which are not. Buta condition precedent to the recording of a statement which is a confessionis that upon questioning the person making it he must have reason tobelieve that it is made voluntarily. If he does not believe that it isvoluntarily made, he is forbidden to record it. If he has reason tobelieve that it is voluntarily made, he is bound to record it and appendthe prescribed certificate. That certificate is conclusive of the fact thatthe Magistrate had reason to believe that the confession was voluntarilymade, but it is not conclusive of the fact that it was in truth voluntarilymade. That fact has to be determined at the trial when it is soughtto prove the confession in evidence. In such a case the burden is on
BASNAYAKE, C.J.—The Queen v- Martin Singho .
the prosecution to prove beyond reasonable doubt (Stuart v. The Queen1)facts necessary to make the confession not irrelevant under section 24.Now that is the point at which the question of “ voluntariness ”has to be determined. The word “ voluntary ” is not a satisfactoryexpression in this connexion, because at the trial the question fordecision is whether the confession is obnoxious to section 24 of theEvidence Ordinance which does not use the word “ voluntary TheLatin expression “ sua sponte ” would better satisfy the requirementsof that section. It reads—
“ A confession made by an accused person is irrelevant in a criminalproceeding if the making of the confession appears to the Court tohave been caused by any inducement, threat, or promise havingreference to the charge against the accused person, proceeding froma person in authority, or proceeding from another person in the presenceof a person in authority and with his sanction, and which inducement,threat, or promise is sufficient in the opinion of the Court to givethe accused person grounds, which would appear to him reasonable,for supposing that by making it he would gain any advantage oravoid any evil of a temporal nature in reference to the proceedingsagainst him.”
In discussing the corresponding Indian section the Privy Councilobserved—
“ A statement made under section 164, Criminal Procedure Code,can never be used as substantive evidence of the facts stated, butit can be used to support or challenge evidence given in Court by theperson who made the statement.” [(1949) A.I.R. (P.C.) 257 at 259].
The jury being the Judges of fact and it being their duty to decideall questions which according to law are to be deemed questions of fact[sec. 245 (c) Criminal Procedure Code], all the questions of fact statedin the section have to be decided by the jury and it is only if they resolvethem against the accused that they can act on a confession recordedunder section 134 and which the prosecution has been permitted by thetrial Judge to produce in evidence. No doubt the trial Judge too hasto determine those very questions of fact before he permits evidence ofthe confession to be given ; [S. 244 (1) (c) ibid] but that does not bindthe jury and they are free to form their own conclusion.
In the absence of the jury the accused gave evidence and described theacts of violence committed on him by the police to compel him to makea statement and the promises made to him to induce him to do so. Healso called other evidence in support of his testimony. The learnedCommissioner disbelieved the evidence of the accused and his witnessesand allowed the prosecution to prove the statement, and withdrew fromthe jury the questions of fact they were bound to consider and come toa decision before'acting on the confession.
1 IQ1 Commonwealth L. R. I.
Warakapitiya Sangananda Terunnanse v. Meeruppe
A further complaint of learned counsel is that the learned Commissionerin the course of his summing-up referred to statements made by theaccused in the absence of the jury. Clearly the learned Commissionerwas not entitled to refer in bis summing-up to statements made by anaccused person in the course of what was a preliminary inquiry by theCommissioner. The jury are not free to act on evidence not given beforethem, and the learned Commissioner did wrong in referring to thestatements made by the accused in the absence of the jury.
The absence of evidence to support the conviction, the withdrawal ofthe decision of the fact whether the confession was made “ sua sponte ”,and the reference by the learned Commissioner to evidence not givenbefore the jury vitiate the conviction. We accordingly quash it anddirect that a judgment of acquittal be entered.
Before we part with this judgment we wish to point out that thecircumstances which lead up to an accused person’s appearance beforea Magistrate to make a confession are no less important than the circum-stances surrounding the actual making of it. We say so, because it isoften the practice to confine the inquiry at the trial to the circumstancessurrounding the actual making of the confession and not to the circum-stances which led up to an accused person’s appearance before theMagistrate.
THE QUEEN v. H. MARTIN SINGHO