The Queen v. Buddharakkita Thero and others
1961Present : T. S. Fernando, J.THE QUEEN v. MAPITIGAMA BUDDHARAKKITA THERO and
S. C. No. 811st Western Circuit, 1961—M. C. Colombo, 23,828JA
Evidence—Confession made by one of seieral persons tried jointly—Admissibility—Evidence Ordinance, as. 24, 30—Criminal Procedure Code, s. J34.
(1) By section 30 of the Evidence Ordinance :—
“ When mere persons than one are being tried jointly for the same offence,and a confession made by one of such persons affecting himself and some other ofsuch persons is proved, the court shall not take into consideration such confessionas against such other person.”
Held, that a confession which can be proved under section 30 of the EvidenceOrdinance should not be excluded merely on the ground of prejudice that itsreception may cause to the co-accused in relation to a charge of conspiracy.
Evidence—Statements made by an accused to a police officer—Admissibility—EvidenceOrdinance. ss. 21, 25 — Criminal Procedure Code, s. 122 (3).
(2) Held, following the decisions in Thuraisamy v. The Queen (54 N. L. R. 451)and Regina v. Anandagodage (62 M. L,. R. at 252), that it is open to theprosecution under section 21 of the Evidence Ordinance to elicit from a policeofficer statements made to him hy an accused person during the interrogationof the latter if such statements are not obnoxious to section 2o of the EvidenceOrdinance.
Orders made in the course of a trial before the Supreme Court ina case where five persons were indicted on a charge of conspiracy tomurder in consequence of which murder was committed and the fourthof them was, in addition, alone charged with committing murder.
G. E. Chitty, Q.C., with Ananda Pereira, L. B. T. Premaratne andV. S. A. Pullenayegum, Crown Counsel, and R. Rajasingham, for theCrown.
Phineas Quass, Q-C., with E. A. G. de Silva and S. Sunfheralingam(assigned), for the 1st accused.
Phineas Quass, Q.C., with E. A. G. de Silva and F. A. de Silva (assigned),for the 2nd accused.
K.Shinya, with U. C. B. Ratnayake, J. Hashim and K. Ratnesar(assigned), for the 3rd accused.
G. Weeramantry, with Annesley Perera, R. L. Jayasuriya and M. B.Jayasekere (assigned), for the 4th accused.
N. Satyendra, with S. G. Wijesekera (assigned), for the 5th accused.
44 T. S. FERNANDO, J.—The Queen v. Buddharakkita Thero and others
March 9, 1961. T. S. Fernando, J.—
Some of the evidence which the prosecution relies on to establish thecharges in the indictment having been led, Mr. Chitty for the prosecutionindicated to me that he proposed next to produce in evidence a statementmade by the fourth accused and recorded by a Magistrate in terms ofsection 134 of the Criminal Procedure Code. Mr. Weeramantry, appear-ing for the fourth accused, indicated that he objected to the reception ofthis statement in evidence on the ground that it is a confession whichsection 24 of the Evidence Ordinance renders irrelevant. Evidence bothto establish and rebut relevance having been heard by me in the absenceof the Jury, I made order, after a consideration of that evidence, that thestatement in question is relevant and admissible.
Mr. Quass, appearing for the first and second accused, thereuponsubmitted that notwithstanding the relevance of this item of evidence itshould be excluded on the ground of prejudice that its reception willcause to the first and second accused. Section 30 of our EvidenceOrdinance enacts that when more persons than one are being tried jointlyfor the same offence, and a confession made by one of such personsaffecting himself and some other of such persons is proved, the Courtshall not take into consideration such confession as against such otherperson. Mr. Quass emphasized that a direction to the jury, howeverstrongly made, that this statement of the fourth accused is not evidenceagainst any accused other than the fourth accused himself will not erasefrom the minds of the jurors who are laymen the kind of prejudice thatmust remain in their minds relating to such connection between thedeclarant and the other persons who the declarant says were conspiringwith him in the commission of the offences charged. Mr. Quass furthersubmitted that the prosecution has on the list of witnesses appended tothe indictment a number of persons who claim to have seen the fourthaccused shoot the deceased, and that the prosecution has been content atthe trial to call only a few of that number of witnesses probably for thereason that the witnesses already called are sufficient, in the opinion ofthe prosecution, to establish the charge of murder made against thefourth accused. For that reason Mr. Quass urged that the prosecutionreally does not need as against the fourth accused this evidence of a•section 134 statement and submitted that the real purpose of theprosecution in leading evidence of this statement vTas to leave in theminds of the jury an impression that the first and second were inconspiracy with the fourth accused.
In regard to this aspect of the matter Mr. Quass has referred me to thecase of The King v. Christie (1914 Appeal Cases 545) and particularly totwo passages therein. The first contains the observations of LordMoulton (see page 559) :—
“ The law is so much on its guard against the accused being prejudiced
by evidence which, though admissible, would probably have a
T. S. FERNANDO, J.—The Queen o. Buddharakkita The to and others
prejudicial influence on the minds of the jury which would be out of pro-portion to its true evidential value that there has grown up a practice of avery salutary nature, under which the judge intimates to the counselfor the prosecution that he should not press for the admission ofevidence which would be open to this objection, and such an intimationfrom the tribunal trying the case is usually sufficient to prevent theevidence being pressed in all cases where the scruples of the tribunal inthis respect are reasonable.”
The second contains the observations of Lord Reading (see page 564)much to the same effect;—
“ Nowadays, it is the constant practice for the judge who presides atthe trial to indicate his opinion to counsel for the prosecution thatevidence which, although admissible in law, has little value in its directbearing upon the case, and might indirectly operate seriously to theprejudice of the accused, should not be given against him, and speakinggenerally counsel accepts the suggestion and does not press for theadmission of the evidence unless he has good reason for it.”
Mr. Chitty in reply to this submission appeared to me to argue that theEnglish practice as to the discretion of a judge to exclude relevant andadmissible evidence in the circumstances mentioned in the case of Harrisv. Director of Public Prosecutions (1952 Appeal Cases 694) is not part ofthe law of Ceylon. Apart from observing that I am aware that certainjudges at the Assizes here have in recent years followed this practice, it isunnecessary in my opinion to discuss whether our law embraces thisEnglish practice as I have reached the view that the contention ofMr. Chitty which I am going to refer to immediately is entitled to prevail.Mr. Chitty has drawn attention to the fact that (1) the evidence he isseeking to elicit is not evidence of little value but is evidence of a completeconfession in relation to both charges against the fourth accused, and (2)the fourth accused has, by reason of the suggestions made through hiscounsel to the witnesses so far called by the prosecution, contested theallegation that he shot the deceased and indicated that the shooting wasdone by another person dressed similarly to himself. In these circum-stances Mr. Chitty contends that the statement of the fourth accused tothe Magistrate is of real importance to the Crown. The opinion oflearned counsel and even my opinion on the question of the credibility ofthe witnesses so far called are in a sense irrelevant in deciding at thisstage whether the Crown has a real need for the introduction of theevidence sought to be led because the jurors remain throughout the solejudges of fact in this case, and it does not appear to me to be right to doanything which may give rise to the view that any question of fact hasbeen prejudged.
Moreover, a confession is not evidence which can ordinarily be said tobe of little value in its direct bearing upon the case, and I have reachedthe conclusion that the statement in question should not be excluded byme from consideration by the jury. The jury have the undoubted rightof excluding the confession altogether from their minds if they come to
46 T. S. FERNANDO, J.—The Queen v. Buddharakkita, Thero and others'
the conclusion that it appears to have been made as a result of aninducement, threat or promise proceeding from a person of the classindicated in section 24 of the Evidence Ordinance.
I was next referred by Mr. Quass to the following observations of LordPorter in the Indian case of WaUi Mohammad and another v. The King(1949) A. I. R. (P. C.) 103.
“ The difficulty in all cases where two persons are accused of acrime and where the evidence against one is inadmissible against theother is that however carefully assessors or a jury are directed andhowever firmly a judge may steel his mind against being influencedagainst one by the evidence admissible only against the other, neverthe-less the mind may inadvertently be affected by the disclosures madeby one of the accused to the detriment of the other.”
An examination of WaUi Mohammad's case reveals that the onlyevidence against each accused at the trial which was of two persons on acharge of murder consisted of the contradictory statements made by eachbefore the police implicating the co-accused and exculpating himself butadmitting his presence at the scene of the crime. On this point, asViscount Simon stated in Harris v. Director of Public Prosecutions atpage 711 (supra) :—
“ It must also be remembered that every case is decided on its ownfacts, and expressions used, or even principles stated, when the Courtis considering particular facts, cannot always be applied as if they wereabsolute rules applicable in all circumstances.”
It is unreasonable to think that the Judicial Committee intended to saythat, where evidence sought to be led is admissible against one or more ofthe accused but not against the other accused charged together at onetrial, such evidence should as a rule be excluded from the jury. Thesafeguard for such a situation must lie in a clear direction by the trialjudge to the jury that in considering the verdict in respect of anyparticular accused person evidence inadmissible in law against himshould be left out altogether. As a further precaution, the trial judgecan indicate to the jury what is the evidence led separately as against eachaccused.
In certain cases undue prejudice may be safeguarded against by aseparation of trials. No application has been made before me at anystage for a separation of trials, and I agree with Mr. Quass.’s observationthat even if the charge of conspiracy to murder against the five accusedand the charge of murder against the fourth accused had been separated,yet on the charge of conspiracy to murder alone the same question thathe has now agitated would have arisen.
April 3, 1961—
The prosecution seeks to elicit from this witness (Inspector Seneviratne)certain statements alleged to have been made to him during his interro-gation of certain of the accused in this case. If the matter had been res
T. S. FERNANDO, J.—The Queen v. BuddharokJcito Thero and others 47
Integra, it would have been open to me to follow what appears to me to bethe correct interpretation of Section 122 (3) of the Criminal ProcedureCode. But during the course of the argument, it has been made patentto me that there are two decisions of the Court of Criminal Appeal whichapply directly to the point that has now arisen. If these two decisionsdeal with the point that has now arisen, I must say that I am bound bythese decisions and have to follow them and apply the law as interpretedtherein.
In Thuraisamy v. The Queen1 it was held that if the admission ofstatements made by the accused was not obnoxious to section 25 of theEvidence Ordinance, then “ it was open to the prosecution under section 21of the Evidence Ordinance to prove them as admissions of relevantfacts.” The Court held that the proving of the admissions by way ofrebuttal of the evidence of the accused was not a proper exercise of theJudge’s discretion as it was open to the prosecution to prove them aspart of the case for the prosecution in the first instance before it wasclosed. The reasoning which led. to the decision in Thuraisamy's case wasfollowed by the Court of Criminal Appeal in Regina v. Anandagodage a.In that case the prosecution led in evidence as part of its case certainadmissions which were alleged to have been made by the appellant topolice officers. The Court held that the evidence was properly admittedand it is sufficient for me to say that I am bound by the judgmentreferred to above.
Mr. Quass has invited me to hold that I am not bound by the viewsexpressed by the Court of Criminal Appeal as that Court on neitheroccasion did expressly deal with the point that has now arisen. I regretI am unable to agree with Mr. Quass that these decisions do not expresslydeal with tbe point.
In this state of the interpretation of the relevant law, there is nothingmore to be said. With great respect to the Court of Criminal Appeal,however, I should perhaps be pardoned if I permit myself the observationthat the interpretation placed in these decisions appears to me to becapable of paving the way in this country for a conviction of an accusedperson to be furthered by statements made by himself, and not only inthe limited circumstances where they can be utilised to prove that hemade a different statement at a different time, i.e. in the cross-examinationof his evidence from the witness box, without even a safeguard of acaution addressed to him by a police officer who is interrogating him.This procedure thus appears to me to be alien to the spirit both of theCriminal Procedure Code and the Evidence Ordinance. This observationof mine can be of little comfort to the accused in this case because so faras this Court is concerned, the opinion of the Court of Criminal Appealmust prevail and my observations can remain but the idle musings of asingle judge.
'(1X52) 54 N. L. R. at page 451.2 (i960) 62 N. L. R. 241 at page 252.
THE QUEEN v. MAPITIGAMA BUDDHARAKKITA THERO and 4 others