( 372 1
1897.July 7, 9,and 12.
THE QUEEN v. NASSAU et at.D. C., Colombo (Criminal), 1,380/47,200.Evidence—Confession by accused not made voluntarily, but caused by athreat by a person in authority—Ceylon Evidence Act, ss. 24 and 132.
In the course of an inquiry by the Superintendent of a ConvictEstablishment into certain frauds alleged to have been committedin the establishment, defendant, the Doputy Jailer, was sent forand questioned. After he had answered many questions he wasasked to explain one statement which seemed to be inconsistentwith another. He said he could not explain it, and then stated :
“ I decline to make any further statement or to give any further“ evidence.” The Superintendent then asked him whether he knewthe consequence of this refusal; and he Said, ‘‘ I know I shall fee“ interdicted from further work.” Next morning accused wasbrought before the Superintendent formally charged under *Ordi-
nance No. 16 of 1877* “with gross insubordination' in refusing
“ to give evidence in an inquiry into certain frauds alleged to“ have been committed in the prison' hospital in his charge.”He pleaded guilty, and staged in defence, “ I regret very much“my conduct yesterday, and am now'prepared to give all the“ information I can.”' On this he was found guilty of grbssinsubordination, but no sentence was passed. Accused thenproceeded to make a statement, which contained a confession of (
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his guilt of criminal misappropriation of money entrusted to him.Proceedings were subsequently had against the accused in the.Police Court, and he was committed for -trial before the DistrictCourt. At Che trial the above statement was read in evidence—Held, that the statement was improperly received in evidence, andthe Supreme Court refused to read it.
rj’’HE facts of the case appear in the judgment.
Domhorst, for appellant.
Pieties, Acting C.C., for respondent.
Cur. adv. vuti.
12th July, 1897. Lawbie, A.O.J.—
I affirm the conviction and sentence passed on the first accused.I do so rejecting the confession made by him to Major Firmingeron the 23rd March, 1897. The question whether that confessionwas admissible in evidence at this trial before the District Courtis one by no means free from doubt. It is a safer precedent toreject it than to accept it. The confession was made in theseoircumstances. Major Firminger, Superintendent of the ConvictEstablishment, on 22nd March received from Dr. Huybertsz, thedoctor in charge of the Convict Hospital, a letter requesting aninquiry whether condensed milk had or had not been receivedon the 9th March at the Convict Hospital. On the same dayMajor Firminger held an inquiry, and (as was natural) the firstman he sent for was Nassar (the present accused), the DeputyJailer of the Convict Hospital. He was questioned, not on oath,and after answering many questions he was asked to explain‘onestatement which seemed inconsistent with another. He said hecould not explain it, and then he said, “ I decline to make any""further statement or to give any further evidence.” The Superin-tendent then asked him if he knew the consequence of this refusal,and he Baid, “ I know that I shall be interdicted from further“ work.” Next morning, the 23rd, he was brought before theSuperintendent, formally charged under Ordinance 16 of 1877“ with gross insubordination in refusing to give evidence in an“ inquiry into certain frauds alleged to have been committed in the“ hospital in his charge.” He pleaded guilty, and stated in defence,“ I regret very much my conduct yesterday, jand now am prepared“ to give all the information 1 can.” On this he was found guiltyof gross insubordination, but no. sentence was passed. Theaccused then proceeded to make the statement, which contained aconfession of the accused’s guilt of criminal misappropriation ofmoney entrusted to him. Then the Superintendent charged him• with breach of the Prisons Ordinance, No. 16 of 1877, in having onJO-
1897.July 7,9.and JA
JtUy 7,6,and 12.
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the 9th March, 1897, being guilty of embezzling two sums of money,viz., Rs. 17-50 and Rs. 18*50, given to him to purchase condensedmilk. The accused pleaded guilty, and stated in defence, “ I put“ in my statement.” The Superintendent found him guilty, butno sentence was passed. At the trial in the District Court thestatement was read in evidence. If the statement be regarded asthe confession by an accused person, as indeed Nassar then was,in fact he was then suspected and virtually accused by hissuperior officer, then the confession was caused by a threat by aperson in authority; it was made by him to avoid the temporalevil of being punished for gross insubordination, and is inadmissibleunder section 24. But if the statement be regarded, not as theconfession of an accused, but as the answer of a witness compelledto answer questions of a criminating character, then the Ordinance(section 132) enacts that these answers cannot be proved againsthim in any criminal proceeding. If, on the other hand, it beregarded as the confession of a man then unaccused, it cannot beproved as a confession because it was not made voluntarily ; it wasmade under pressure by a superior officer after he had declined tosay more—that is a sufficient reason for rejecting it. It is by nomeans clear to me that either the 24th or 132nd section of theEvidence Ordinance exactly applies, but the common law, that noconfession can be proved unless it has been absolutely voluntarilymade, must guide me, and under that guidance I hold that theconfession was improperly received in evidence, and I refuse toread it..
[His Lordship then proceeded to deal with the evidence in thecase.]
THE QUEEN v. NASSAR et al