BASNAYAKE, C.J.—The Queen v. Abadda
[In the Court op Criminal, Appeal]
1963 Present: Basnayake, C.J. (President), Herat, J., and Abeyesundere, J.
THE QUEEN v. R. D. ABADDAAppeal No. 8 of 1963, with Application No. 8S. C. 38/62—M. C. Kurunegala, 13422
Evidence—Confession—Inadmissibility of even an innocuous portion of it—Use of
confession to discredit accused—Illegality—Evidence Ordinance, ss, 25, 15t> (3).
The question whether a statement made by an accused person to a policeofficer is a confession within the meaning of section 25 of the Evidence Ordinanceis one that has to be decided upon reading the entire statement.If the statement as a whole contains a statement that the accused personcommitted an offence or that suggests the inference that he committed anoffence, then it would come within the prohibition contained in section 25 ofthe Evidence Ordinance.
Where the accused’s statement contains a confession, the prohibition containedin section 25 of the Evidence Ordinance bars the proof against the accusedof not only those portions of the statement which admit guilt or suggest theinference that he committed the offence but also those portions of the statementwhich when taken out of the context by themselves are innocuous. No portionof a confession can be proved against an accused person.
A statement barred by section 25 of the Evidence Ordinance cannot beused under section 15G (3) for the purpose of discrediting the accused.
.A.PPEAL against a conviction in a trial before the Supreme Court.D. G. Jayalath (assigned), for the Accused-Appellant.
Wakeley Paul, Crown Counsel, for the Crown.
May 30, 1963. Basnayake, C.J.—
The appellant was indicted with the offence of murder by causing thedeath of Gunandawadu Deelin Soysa Wickremasinghe on 28th March,1962. He was found guilty of voluntarily causing grievous hurt andsentenced to undergo a term of five years’ rigorous imprisonment.
Of the grounds of appeal stated in the Notice of Appeal, learned counselfor the appellant confined himself to two, namely—
“ (1) The learned Judge permitted the Crown to cross-examine theaccused on a statement made to the Police Inspector to the effect thatthe accused had the knife marked P2 in his hand at the time of theincident. The prosecution alleged that this was the knife used tocause the injury. Under the circumstances of this case, it is submittedthat the accused’s statement was a confession and its reception offendedsection 25 of the Evidence Ordinance.
(6) In His Lordship’s slimming up, the position was not madeclear that the jury could arrive at a verdict, considering the evidenceas a whole. Instead His Lordship conveyed the view to the Jury that
BASHAYABZE, C.J.—The Queen v. Abadda
if they disbelieved the accused in his denial of a statement that thepolice alleged he made, then they must reject the defence and fallhack on the evidence of the witness S. A. Jayasena. It is submittedthat the Jury, properly directed, may have taken the view that assumingthe accused had the knife P2 with him and considering the location ofthe injury, that he acted in defence. ”
In support of the first ground learned counsel referred us to thefollowing record of the proceedings while the appellant was undercross-examination :—
“ 877. Q. That night the police came to your house and arrestedyou at about 8.30 p.m. ?
Q. On the 29th night ?
Q. And at your house they recorded your statement ?
A. Yes. ”
“ I intend to put a certain passage to this witness. Might the jurybe asked to retire, My Lord. ”
Court : Yes.
Jury retires at 10.06 a.m.
Court: You might show the portions which you wish to put to Mr. Silva.Passage :
“ On 28.3.62 at about 6 or 6.30 p.m. I garaged the lorry No. 22Sri 3797 at Tingolla as usual in the garage of the owner one Dharmasena.At about 2 or 2.30 p.m. I bought this knife for Rs. 3 from a hawkerat Tingolla to be taken home in the evening for use in the kitchen.It was kept in the lorry. When I was coming about 6 or 6.30 p.m.I brought this knife along with me. At Talahingoda I saw Jayatissadriving the car towards Mawatagama:He saw me and stopped the
car. I got into the rear seat. Thenna was seated in the front seatnext to Jayatissa the driver. This knife was in my hand.
Mr. de Silva : I object to that passage, My Lord.
Q.On what ground ?
Mr. de Silva :
Under section 25 of the Evidence Ordinance. This would be tanta-mount to proving a confession. This knife is what the prosecution istrying to place in his hand. It is a statement made to. the police, andplacing this before the Jury would be tantamount to proving thatthis man has made a confession.
■■ 'Not necessarily. It does not necessarily follow that the accusedmade a confession that he used this knife. .The question is whether hemade an admission that he had the knife.
B ASNAYAKE, C.J.—The Queen v. Abadda
Mr. de Silva : Here he says he never had a knife.
I allow Grown Counsel to put this part of the statement to theaccused.
Jury return at 10.12 a.m.
Q. You told us your statement was recorded by the police ?A. Yes.
Q. Who recorded it ?
A. The Sergeant.
Q. Are you sure of that ?
Q. Not by the Sub-Inspector ?
He has said that he recorded your statement. Are youcontradicting that.
A. It was the Sergeant who recorded my statement
Thereafter learned Crown Counsel put the above-quoted passage to theappellant sentence by sentence and he denied some of the statementsand admitted others. After he had finished his evidence Sub-InspectorAndrews was called and the passage was proved.
The above passage is a part of a statement made by the appellant tothe Police and not his entire statement. It would appear that in hisstatement the appellant went on to state further—
“ Then I came to Mawatagama town and stopped on the Kandy/Kurunegala road in front of Bentara Hotel. I got down from the carwith the knife under my left arm-pit with the idea of going home. Iasked Jayatissa whether he was going immediately. He told me that hewould be a bit late. I did not see Tenne there. At that time I heardSoysa scolding someone in filthy language. I asked Soysa, the deceased,as to whom he was scolding. Then he asked me, e who is the thug,son of vagina ’ and so saying Soysa came and assaulted me with handson my face once. Then I fell down with the knife in hand. He pushedme again and assaulted with hands. Again when Soysa was assaultingwith hands, then one or two others also assaulted me with hands andclubs. Then I waved this knife to prevent Soysa assaulting me. Ido not know whether Soysa sustained an injury on his hand whenwaving this knife. When Soysa and others got behind, I ran with theknife towards Malandeniya to my brother-in-law’s place, M. D. Sarana’splace. I remained at Sarana’s place through fear with this knife.I told Sarana about this incident. Then he advised me to go to thepolice. I told him that I would come to the police today. Today at
BASNAYAXE, C.J.—The Queen v. Abadda
about 5.30 p.m. or so I came with this knife to my house at Rambattewith the idea of surrendering at the police station tonight. In themeantime police came and arrested me. I produced this knife as thepolice came and requested me as the knife I used when Soysa wasassaulting me. I did not see Tenne after I got down from the car at thefirst occasion and I cannot identify and I do not know who the othertwo persons who assaulted with clubs. They did this from behind.Soysa assaulted me from the front. I did not see Gunasena. I havepain on my left jaw and back of hip and all over body. I was in hidingthrough fear of getting assaulted by Soysa’s people. I have givencharge the shirt and the sarong I was wearing at the time of assault.I also gave charge of the knife to the police immediately the policecame to my house. I was not angry with Soysa and he was not angrywith me. I used to drink tea from his hotel. Last night he wasafter liquor. Soysa was worse for liquor. I told my father that Icame home to go to the police with the knife. This is all I have tostate. Read oyer and explained and admitted to be correct. ”
The objection taken to the passage that was put to the accused wasthat it was tantamount to proving a confession. The learned Judgeseems to have thought that that passage did not necessarily show that theaccused confessed that he used this knife. He treated it as an admissionthat he had a knife. The question whether a statement of an accusedperson comes within the prohibition contained in section 25 of the Evi-dence Ordinance, namely, “ No confession made to a police officer shallbe proved as against a person accused of any offence ”, is one that hasto be decided upon reading the entire statement. If the statement as awhole contains a statement that the accused person committed an offenceor that suggests the inference that he committed an offence, then thatstatement would come within the prohibition contained in section 25of the Evidence Ordinance. The expression “ confession ” in the contextis not confined to the incriminating words. It includes the entire state-ment of which those words are a part. It is not open to the prosecutionto take out of their context what appear, when taken by themselves,to be innocuous sentences and then seek to prove them as admissions.It is relevant in this connexion to refer to the view expressed by the PrivyCouncil in the Anandcigoda case1 which contains the following passage :—
" The test whether a statement is a confession is an objective one,whether to the mind of a reasonable person reading the statement at thetime and in the circumstance in which it was made it can be said toamount to a statement that the accused committed the offence orwhich suggested the inference that he committed the- offence. Thestatement must be looked at as a whole and it must be considered onits own terms without reference to extrinsic facts …. Itis not permissible in judging whether the statement is a confession tolook at other facts which may not be known at the time or which , mayemerge in evidence at the trial. But equally it is irrelevant to consider
l(1962) 64 N.L.R. 73 at 79,
BASNAYAKE, C. J.—The Queen v. Abadda
vhether the accused intended to make a confession. If the factsin the statement added together suggest the inference that the accusedis guilty of the offence then it is none the less a confession even although
the accused at the same time protests his innocenceThe
appropriate test in deciding whether a particular statement is a con-fession is whether the words of admission in the context expresslyor substantially admit guilt or do they taken together in the contextinferentially admit guilt ? ”
We are in respectful accord with what is stated in the words quotedabove, and we are of the view that where the accused’s statement containsa confession the prohibition contained in section 25 of the EvidenceOrdinance bars the proof against the accused of not only those portionsof the statment which admit guilt or suggest the inference that he com-mitted the offence but also those portions of the statement which whentaken out of the context by themselves are innocuous. In other wordsno portion of a statement in the course of which an accused makes aconfession to a police officer can be proved against an accused person.
In the instant case it is submitted that the statements in questionwere used under section 156 (3) of the Evidence Ordinance for the purposeof discrediting the appellant. A statement barred by section 25 of theEvidence Ordinance cannot be proved even for that purpose.
We are of opinion that this evidence has been improperly admitted-The improper admission of evidence by itself is not ground for quashinga conviction, but in the instant case the evidence improperly admittedappears to have influenced the jury to accept the evidence of the eye-witness in preference to the version given by the accused.
In regard to the second ground urged by learned counsel it is sufficientto quote the following passage from the learned Judge’s summing-up :—
“ As I told you, you have to reject the accused’s version as falsebefore you convict the accused of any offence. In deciding whetherthe accused’s evidence is false or not, you are entitled to take intoaccount the matters I have referred to earlier. One of them is hisstatement to the police regarding the knife. It is an important matterbecause if as the accused states he had no weapon at all then it makesit more likely that he did not injure the deceased, but in his statementto the police he had been questioned about the knife which was foundin his house. It was a brand new knife and I suppose the PoliceInspector who searched the accused’s house on the following day andcame across this knife, would have questioned him about this knifebecause apparently that was the only likely weapon that was found inthe accused’s house and he had already recorded the statement ofJayasena as to how the deceased came to be injured. Therefore theInspector had to question the accused and the accused said that hehad purchased this knife that very day at Tingolla and he brought itwith him, that he had this knife with him when he got into Jayatissa’scar and when he got out of Jayatissa’s car intending to go home he had
BASNA.YAKE, O.-J.—The Queen v. Abadda
the knife with him. Of course, you cannot from this admission that hehad the knife say that the accused is admitting that he cut the deceased.These are two entirely different things. You will he grievously wrong ifyou regard this as an admission that he cut the deceased as well, but you haveto consider the statement in relation to the evidence in regard to the knifeand that is a matter that affects his credibility. Here he says that henever had a knife with him, that he never made this statement, butthe officer who recorded the statement has been recalled and his evidencebefore you is that such a statement was made and a copy of that statementhas been placed before you. Is there any reason for the Sub-Inspectorto give false evidence against the accused or are you quite satisfiedthat the accused did make such a statement and if he did make such astatement, how does it affect his credibility on his evidence on thatpoint ? If you reject his evidence on that point, on a point which ismaterial, have you any reason to accept his evidence on other points ?Of course you need not necessarily reject his evidence on other points, butyou will consider the evidence bearing in mind that he has given falseevidence on a material point. His evidence here is also contradictedby the Sergeant. According to the accused he ran away from the scenein order to escape further injury when he was attacked by some two orthree persons. He ran home which is a short distance away fromthis place, he had his meals, he told his home people what had happenedand he slept and he got up only the next morning when he only for thefirst time came to hear that the deceased had died …. I maysay that if a number of people attacked him and he inflicted an injuryon one of his assailants he was acting in the right of private defence,and he should be acquitted. If you reject his evidence to the extentof holding that he was the person who cut the deceased, then I shouldthink that you will have little difficulty in rejecting his further evidenceas to how he came to be attacked by a number of people and thequestion whether the accused was acting in the exercise of privatedefence, or whether he had been offered grave and sudden provocationare matters which you will consider on the basis of the prosecutionevidence alone. ”
The learned Judge’s directions—
(а)that the appellant’s statement to the Police regarding the knife
should be regarded as proving the falsity of his evidence onoath,
(б)that because his evidence is contradicted by the Sergeant the
appellant must be regarded as giving false evidence,
are wrong in law, and this is a further ground on which his convictionshould be quashed. The appellant is entitled to succeed on bothgrounds.
We quash the conviction and direct that a judgment of acquittal beentered.
THE QUEEN v. R. D. ABADDA