071-NLR-NLR-V-69-THE-QUEEN-v.-K.-KALIMUTTU.pdf
The Queen v. Kalimuttu
349
[Court of Criminal Appeal]
Present; Sansoni, C.J. (President), Alles, J., and Siva Supra*
maniam, J.
THE QUEEN v. K. KALIMUTTUAppeal No. 62 of 1966, with Application No. 1068.C. 3—M. C. Jaffna, 30692
Evidence—Confession—Admissibility—Summing-up—Misdirection—Evidence Ordin-ance, s. 24.
Where, in a trial before the Supreme Court, a confession made by the accusedto the Magistrate has been put in evidence, the jury should be directed thatthe prosecution must prove beyond reasonable doubt that the confessionwas voluntarily made.
ApPEAL against a conviction at a trial before the Supreme Court.
E. R. S. R. Coomaraswamy, with Anil Obeysekera, 0. C. Wanigasekera,N. Wijenathan, C. Chakradaran and S. S. Sahabandu (Assigned), forthe Accused-Appellant.
V. T. Thamotheram, Deputy Solicitor-General, with T. A. de 8. Wije-sunder a, Senior Crown Counsel, for the Attorney-General.
Cur. adv. vult.
350
SAKS ONI, C.J.—The Queen v. Kalimuliu
October 14, 1966. Sansoni, C.J.—
The appellant was convicted by the unanimous verdict of the juryof the murder of Thamayanti Rajamathandar, and the attemptedmurder of Rajaluxmy Devarajan. It was proved conclusively, apartfrom the admissions of the appellant himself when he gave evidenceat the trial, that these two women were attacked by him with a clubwhich he took with him to the house in which the women were living.Both women had been severely attacked and a number of injuries wereinflicted on them.
The defence put forward by the appellant was that he had sufferedgrave and sudden provocation which reduced the offences to culpable"homicide and attempted culpable homicide not amounting to murder,respectively.
The only point we need consider on this appeal is whether the learnedtrial Judge properly directed the jury as to how they should considera confession made by the appellant to the Magistrate when they cameto consider their verdict. It was submitted that the learned Judge’sdirections were inadequate in this respect.
At an early stage of the charge he said this when referring to theconfession:—
“ Then the Crown also relies in this case on a statement which theCrown says is an alleged confession made by the accused to theMagistrate. Under our law, Gentlemen, before you can act on analleged confession of this nature, firstly you will have to satisfy your-selves that the accused did make that alleged confession which theMagistrate says was made to him and it is found in Pll. Then,Gentlemen, you cannot act on that confession unless you take theview that no inducement, threat or promise was held by any personin authority to the accused to make that statement.’.’
Shortly afterwards he said this :—
“ First consider whether there was any inducement, threat orpromise from a person in authority or by any other person in thepresence of a person in authority in order to have this accused tomake a statement of this nature and which gave him grounds forsupposing that by making that statement he would gain any advantageor avoid any evil of some temporal nature in reference to the proceedingsagainst him. For instance, if you take the view that the Inspectorthreatened him to make a statement and through fear he made thisstatement and if that was the state of affairs that existed at the timehe made the statement to the Magistrate or if you take the view thathe was induced to make a statement to the Magistrate then you cannotact on the alleged confession as such which is set out in Pll, a copyof which will be given to you.”
SANSONT, C-*T.—The Queen v. Kalimutlu
351
Towards the end of the charge there are the following passages :—
“ The accused made a long statement before the Magistrate andin this statement what the accused alleges now in this court thatwhen he went there Mrs. Rajamathandar abused him, is notthere. Gentlemen, would it not have been foremost in his mindthe fact that Mrs. Rajamathandar abused him ? The fact that there-after he was taken inside the kitchen and assaulted by Mrs. Devarajan,would it not have been a grievance foremost in his mind ? As Itold you, this evidence was led to show that no inducement, threator promise was made to him. On the other hand there is the accused’sevidence that he was assaulted and promised that if he made thestatement he would be pardoned. It is for you to consider whetherinducement, threat or promise was made to the accused to makethat statement, ”
and a little further on
‘ * Then, gentlemen, the accused told you that he went there andasked Mrs. Rajamathandar, who was seated there. He got to theverandah and asked Mrs. Rajamathandar for his salary whereuponMrs. Rajamathandar scolded him and called him a ‘ sakiliya ’ andthen said, ‘ why did you come here, get out’. Then he says hebecame very angry and lost his self-control and assaulted her. Ifyou accept the confession as something which was made voluntarilyto the Magistrate and if you take the view that no inducement, threator promise was held out to the accused and if you act on that, youwill note that he does not say in it that Mrs. Rajamathandar abusedhim.”
It is urged that the learned Judge should have directed the jury thatthey should not act on the confession unless it was proved beyondreasonable doubt by the prosecution to have been a voluntaryconfession, that is to say, one which was not the result of any induce-ment, threat or promise made by a person in authority.
The most recent judgment of this court which dealt with this matteris The Queen v. Martin Singho1, where Basnayake C.J. said—“ that fact(that it was voluntarily made) has to be determined at the trial when itis sought to prove the confession in evidence. In such a case the burdenis on the prosecution to prove beyond reasonable doubt (Stuart v.The Queen (101) C.L.R. 1) facts necessary to make the confession notirrelevant under section 24 (of the Evidence Ordinance). ” It wouldappear that the view of the court'there was that a confession shouldnot be acted upon unless the prosecution has proved beyond reasonabledoubt that it was voluntarily made.
The Court of Criminal Appeal in England seems to have taken theview in R. v. Cave,2 that a jury should be directed that the burdenwas on the prosecution of proving beyond reasonable doubt that the1 (1964) 66 N. L. R. 391.* (1963) Criminal Law Review 371.
352
8ANSONT, C.J.—The Queen v. Kalimuttu
confession was voluntary. This view seems to go further than thatpreviously held by that Court. For example, it decided in R. v. Bass1 thatno statement by an accused is admissible in evidence against him unlessit is shown by the prosecution to have been a voluntary statement,and the judge should direct the jury that if they are not satisfied that •it was made voluntarily, they should give no weight at all and disregardit. There is a similar reference to such a direction in Sparks v. TheQueen 2, decided by the Privy Council. The trial Judge there had giventhe jury a direction that unless they were satisfied that a statementor confession was voluntary, they must reject and disregard it andgive it no weight whatsoever. There was no criticism of this directionby the Privy Council.
It seems to us, however, that the better course for a Judge to followin such a case would be to direct the jury that the burden lay on theprosecution to prove beyond reasonable doubt that a confession put beforethem in evidence had been voluntarily made. In the case before us thishas not been done. The learned Judge has, however, directed thejury more than once that they were not to act on the confession unlessthey accepted it as one made voluntarily by the accused to the Magistrate,and not under the influence of any inducement, threat, or promise heldout to him to make it. They were told at least twice that they were notto act on it unless they took the view that it was voluntarily made.
Whatever view of the' law may be the correct one, we think that inthe interests of uniformity the latest view taken by the Court of CriminalAppeal in England should be followed, and the jury should be directedthat the prosecution must satisfy the court beyond reasonable doubtthat the confession was voluntarily made.
We do not think, however, that in this case the verdict of the jurywould have been any different, if they had been directed in those terms.No reasonable jury would have found the accused guilty of any lesseroffences in view of the strong direct evidence led -by the prosecution.The totality of the evidence satisfies us that the offences with whichhe was charged had been established beyond reasonable doubt.
We accordingly dismiss the appeal.
Appeal dismissed.
(1953) 2 W. L. R. 825.
(1964) 2 IF. L. R. 566.