THE QUEEN v. SODIGE SINGHO APPU

031-NLR-NLR-V-62-THE-QUEEN-v.-SODIGE-SINGHO-APPU.pdf


112
BASNAYAKLE, C.J.—The Queen v. Singho Appu
[In the Court of Crtmtnax. Appeal]
Present : Basnayake, C.J. (President), Pulle, J., and
N. G. Fernando, J.
THE QUEEN v. SODIGE SINGHO APPUAppeal No. 158 of 1958, with Application No. 196S. C. 30—M. C. Colombo South, 80928
Evidence—"Relevancy or admissibility—Stage at which the question should be decided—■Statements made by an accused person to a police officer—Oral evidence thereof—Admissibility—Admission of irrelevant evidence—Effect—Evidence Ordinance,ss. 5, 6 et seq, 11 (6), 17 (2), 21, 25, 27, 59, 60—Criminal Procedure Code,s. 122 (3).
The proper stage at which to decide on the relevancy or admissibility ofevidence is not at the commencement of the trial but at the time when it is soughtto produce the evidence the relevancy or admissibility of which is disputed.
When Rex v. Jinadasa1 laid down that oral evidence may be given of so muchof a statement made by an accused to a police officer as is relevant undersection 27 of the Evidence Ordinance it meant oral evidence as contemplated bythe Evidence Ordinance (ss. 69 and 60). That case does not sanction the proof,in an indirect way, of statements the production of which is prohibited bysection 122 (3) of the Criminal Procedure Code.
Under Section 5 of the Evidence Ordinance evidence may be given only offacts in issue and relevant facts. Evidence admitted in disregard of that Sectionis evidence improperly admitted and a conviction is liable to be quashed if suchevidence has resulted in a miscarriage of justice.
Appeal against a conviction in a trial before the Supreme Court.
M. It. Crossette-Thambiah, Q.C., with S. C. Crossette-Thambiah andLucien Jayetileke, for Accused-Appellant..
V. S. A. Pullenayegum, Crown Counsel, for the Crown.
Cur. adv^vult.
March 23, 1959. Basnayake, C.J.—
The appellant has been convicted on a charge of murder of one Edmundde Silva Jayasinghe on or about 3rd May 1957 and sentenced toimprisonment for life.
After the jury had been empanelled but before opening his case learnedcounsel for the Crown applied to the learned Commissioner in the absenceof the jury for a ruling as to the admissibility of certain passages in the
1 (1950) 51 N. L. R. 529 (Five Judges).
BASNAYAK33, C.J.—The'Queen v. Singho Appu
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statement of the appellant recorded, by David Rodrigo, Assistant Superin-tendent of Police of the Criminal Investigation Department. It will beconvenient to reproduce from the transcript the submissions of learnedCrown Covins el. The transcript reads—
“ I don’t know whether Your Lordship has the typed extracts. Itis at top page 30 of the typed extracts. Your Lordship would bepleased to see there the second sentence. The accused says, ‘ 1 knowdriver Sirisena who was employed under Wimalasena Mudalali ofPadukJca. About four or five months ago on the 3rd of a month I came toPadukka by the 6 o’ clock bus in the evening. ’. I will put in that passage.Also, a little later, about two or three sentences after that YourLordship would be pleased to see : * At Padukka junction at about8.30 p.m. 1 engaged Sirisena'8 car EN 8092 to proceed to Nugegoda andleft with him. There was none in the car except Sirisena and myself.
I was seated in the rear seat with the parcel. * Your Lordship would bepleased to see at the bottom of that passage just about four linesfrom the bottom there is a sentence whicb reads as follows : * I reachedPadukka at about 2 a.m. I paid Rs. 15 to the driver and went home. ’
“ My Lord, I am prepared to leave it at this point : * I was seated inthe rear seat. * ”
Learned counsel for the defence strenuously opposed this application.After hearing the submissions of both counsel the learned Commissionerheld that the statements in question were admissible as evidence.
This court has repeatedly stated that under our procedure the properstage at which to decide on the relevancy or admissibility of evidence iswhen it is sought to produce the evidence the relevancy or admissibilityof which is disputed. Where defending counsel has informed counsel forthe prosecution that he intends to object to the admissibility of certainevidence the proper course is for counsel for the prosecution to refrain .from referring to the evidence in his opening and that issue should bedecided at the appropriate moment in the case when it is sought to producethe evidence. The most recent decision of this court on this point isThe Queen v. N imalasena de Zoysa 1. This is the practice in the EnglishCourts too. (See Rex v. Cole 2 ; Rex v. Hammond 3 ; Rex v. Zielinski 4 ;R. v. Patel 5). That the appellant regarded the procedure adopted asbeing prejudicial to him is borne out by the fact that objection is takento it in the grounds of appeal.Jem®:
In support of the charge the prosecution produced^lwudence of thefollowing facts :—
(а)that on 4th May 1957 at about 1 o’clock in the morning the deceased
was shot in the head while he lay asleep on a bed near a windowat a range of less than a yard ;
(б)that he died in consequence of the injury ;
1 {1958) 60 N. L. R. 97.3 (1941) 28 Gr. App. R. 84.
* (1941) 28 Cr. App. R. 43.4 (1950) 34 Or. App. R. 193.
5 (1951) W. N. 258, 35 Gr. App. R 62.
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BASNAYAIOS, C.J.—The Queen v. Svngho A.ppu
that lie was shot "by someone from outside the window ;
that the injury was necessarily fatal ;
that at about 1 o’clock in the morning of 4th May 1957 a peacock
blue Ford Prefect EN 8092 with the sidelights on, with a personin the driver’s seat, was parked on the side opposite the houseof the deceased about fifty or sixty yards away ;
(/) that, that car was hired by the appellant at about 8.30 p.m. on thenight of 3rd May 1957 at the Padukka bazaar to go to Nugegoda;
(<7) that the appellant travelled alone in the car in the front seat with aparcel;
that the car stopped near a Cinema Hall in Nugegoda and the
appellant went into the compound of the Hall informing thedriver that he wanted to meet a woman called Piyaseeli;
that the appellant returned to the car about midnight;
that he asked the driver to drive to a spot near the house of the
deceased on the High Level Road and stop his car ;
(Jc) that he got off the car informing the driver that he was going tolook for the woman Piyaseeli, and proceeded in the direction ofthe house of the deceased and entered the compound taking theparcel he had brought with him ;
(Z) that alter he entered the deceased’s compound the appellantdisappeared from the sight of the driver ;
(m)that about an hour afterwards the driver heard the report of a
gun from the direction of the house of the deceased ;
(n)that immediately after the shot the appellant came running with a
gun in hand and got into the back seat of the car without theparcel and said “ Let us go quickly ” ;
(o)that he adopted a reclining posture on the seat as they proceeded ;
(p)that he got off at Padukka with the gun and paid the driver his fare
of Rs. 15 and proceeded along a jungle path.
After the main evidence.for the prosecution had been led learned CrownCounsel called Assistant Superintendent of Police, David Rodrigo, togive evidence. The examination-in-chief proceeded as follows :—
“ 1487. Q : You assisted Mr. Kitto in the investigation into thiscase ?
A : I was in charge.
Q : You had to investigate because the local police had failedto unravel the mystery ?
A : Yes.
BASNAYAKE, C. J.—The Queen v. Sing ho Appu115
Q : Yon recorded the statements of various people in the course
of your investigations ?
A : Yes.
Q : And in the course of that you recorded, the statement of the
accused himself ?
A : Yes.
Court •1491. Q : When was the C. X. D. called in first ?
A : X got the papers on the 5th June, 1957.
i »
Q: When did you record the statement of thisaccused ?
A : 2nd October, 1957, at 6.30 p.m. at my office.
Examination continued-.
Q : Did the accused, tell you in the course of his
statement * I know driver Sirisena who wasemployed underWimalasena of Padukka. (A)
A : Yes.
Q : Did he say 4 about 4 or 5 months ago on the 3rd
of a month I came to Padukka by the 6 o’clockbus in the’ evening and arrived at Padukkajunction about 8.30 p.m. I engagedSirisena’s car EN 8092 to proceed toNugegoda ’?. ….(B)
A : Yes.
Q : Did he also say 4 There were none in the car
' except Sirisena and myself’ ?. . .(C)
A : Yes.
Q : 4 I reached Padukka at about 2 a.m. I paid
Rs. 15 to the driver' and went home. I didnot go home. I slept in the verandah of oneAvis Singho’s boutique ’ ? . .. .(D)
A : Yes. He said that. ”
In appeal objection was taken to the admission in evidence of theabove statements of the appellant under the following two main heads:;—
(а)that they were confessions excluded by section 2.5 of the Evidence
Ordinance ;
(б)that the reception in evidence of the statements of the accused made
to a police officer and reduced to writing by him in the course ofan inquiry was contrary to law."
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BASNAYAKE, C.J.—The Queen v. Singho Appu
It would appear from the evidence reproduced above that the policeofficer concerned reduced to writing under section 122 of the CriminalProcedure Code what the appellant said in the course of his examinationby the former. Learned Crown Counsel’s submissions to the learnedCommissioner at the very beginning of the trial and the way in which heexamined the police officer David Rodrigo leave no room for doubt thathe was seeking to prove portions of the appellant’s statement reducedto writing under section 122. He was clearly not seeking to prove theoral statements of the appellant. The police officer was not asked whetherhe remembered what the appellant stated at the time he was examinedby him. Even if asked, he would not have been able to recall on 11thDecember 1958, for that is the day on which he gave evidence, what herecorded on 2nd October 1957, the day on which he examined theappellant, without referring to the written record.
Now section 122 (3) of the Criminal Procedure Code declares that nostatement made by any person to a police officer in the course of aninvestigation under Chapter XII shall be used otherwise than to provethat a witness made a different statement at a different time or to refreshthe memory of the person recording it. Learned Crown Counsel was notseeking to contradict the appellant because the stage for doing so had notarrived. Nor was the witness using the statement to refresh his memory.
Both counsel and judge seem to have assumed that if the statementsA to D above were not confessions they were relevant as admissions bythe appellant under section 21 of the Evidence Ordinance. They seemto have proceeded on the assumption that Rex v. Jinadasa 1 authorisedthe proof of the statements. We are unable to agree that that caseauthorises what was done. A number of cases in which Rex v. Jinadasa{supra) has been misapplied have recently come up for hearing before us.This court will not be friendly towards any attempt to extend the appli-cation of that decision to cases not covered by it.
When it laid down that oral evidence may be given of so much of a state-ment made by an accused which is relevant under section 27 of the Evi-dence Ordinance it meant oral evidence as contemplated by the EvidenceOrdinance (ss. 59 and 60). That case does not sanction the proof of thecontents of the written record made under section 122 of the CriminalProcedure Code in the indirect way in which it has been sought to provethem in this and other cases that have come up here.' The admission ofthe statements in question is improper and constitutes a violation ofsection 122(3) of the Criminal Procedure Code.
Learned counsel’s main contention was that the statements were in-admissible as they were confessions made to a police officer. In supportof it he referred us to the cases of Ring v. Kalu Banda*, King v. UkTcuBanda 3, Rex v. Gooray 4, and King v. Gunawardene 5. He claimed thatthese cases hold that in determining whether a statement is a confessionor not the court must look not at the bare statement but at the statement
1 (1950) 51 N. L. R. 529.3 (1923) 24 N. h. R. 327.
* (1912) 15 N. L. R. 422.* (1926) 28 N. L. R. 74.
. 6 (1941) 42 N. L. R. 217.
BASNAYAKB, C.J.—The Queen v. iSingho A.ppu11"?
in the light of the evidence in the case. The proper approach to thequestion that arises for decision is to examine the relevant provisions ofthe Evidence Ordinance first. A confession is an admission made atany time by a person accused of an offence stating or suggesting theinference that he committed the offence (s. 17 (2) ) and an admission is astatement, oral or documentary, which suggests any inference as to anyfact in issue or relevant fact, and which is made by any of the persons andunder the circumstances mentioned in the sections that succeed section 17of the Evidence Ordinance. Admission is the genus and confession thespecies. Every confession is an admission but, every admission is not aconfession. Section 21 permits the proof of admissions against the personmaking them. An admission not barred by section 17 (2) of the EvidenceOrdinance as a confession may be proved under section 21 only if it sug-gests any inference as to any fact in issue or relevant fact. The facts inissue in a criminal trial are the facte which the prosecution must establishin order to prove the charge, in other words the facta probanda. Now thequestion that arises for consideration in the instant case is—Do the factsin the statements A—D suggest any inference as to the facta probanda ?In our view they do not. Then do they suggest any inference as to anyrelevant fact 1 Section 6 et seq. of the Evidence Ordinance declare whatfacts are relevant. If the statement B had not been so vague but haddefinitely fixed the date of the journey as 3rd May 1957 it would haveestablished thte presence of the appellant in the town in which the crimewas committed at or about the time of the commission of the offenceand would, taken together with statements C and D, have come within theambit of section 11 (b).
The result is that the Crown has not only produced in evidence state-ments the production of which is prohibited by section 122 (3) of theCriminal Procedure Code but it has also led irrelevant evidence whichwas bound to have prejudiced the appellant. We cannot escape theconclusion that these statements when taken with the evidence of thedriver Sirisena must have created in the minds of the jury the convictionthat it was the appellant who murdered the deceased especially as thelearned Commissioner of Assize directed the jury that these statementscorroborated the driver Sirisena.
The Evidence Ordinance lays down strict limits within which evidencemay be given in atny suit or proceeding. Evidence may be given of theexistence or non-existence of every fact in issue and of such other facteas are declared by the Ordinance to be relevant and of no others (s.5).Evidence admitted in disregard of section 5 is evidence improperlyadmitted and a conviction is liable to be quashed if such evidence hasresulted in a miscarriage of justice.
It is unnecessary to discuss learned counsel’s arguments in regard to theapplicability of King v. Kalu Banda {supra) as we have formed the viewthat on other grounds the statements have been improperly admitted in
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JPerera v. Hon Simon
evidence. Nor is it necessary for the purpose of this case to deal withlearned Crown Counsel’s submission that King v. Kalu Banda {supra)has been impliedly over-ruled by King v. Cooray (supra).
In the instant case, the statements produced in evidence being state-ments the use of which section 122 of the Criminal Procedure Code pro-hibits except for the purposes specified in that section, the questionwhether they were confessions becomes a matter of importance only if theprohibition in that section does not apply to them. We have aboveexpressed the opinion that the statements come within the ambit of thatprohibition, and are also not confessions.
The question that next arises for consideration is whether indepen-dently of the evidence objected to and admitted there is evidence sufficientto justify the conviction. We are of opinion that there is, independentlyof the evidence objected to, evidence which, if believed, establishes thecase against the appellant. But having regard to the fact that thematerial evidence in this case was discovered nearly six months afterthe offence and the fact that an attempt was made to force the appellantto make a confession to the Magistrate and having regard to the othercircumstances of this case we cannot with confidence affirm the conviction.
-We accordingly allow the appeal, quash the conviction and order a newtrial.
Appeal allowed.