047-NLR-NLR-V-59-THE-QUEEN-v.-VICTOR-PERERA-and-5-others.pdf
'S'lie. Queen v. Victor Pcrcro
1S5
[In the Court of Criminal Appeal]
Present: Gratiaen J. (President), Gunasekara, J., and .Weerasooriya, J.THE QUEEN v. VICTOR PERERA and 5 others
Appeals 3-S of 1955 with Applications 3-8
'S. C. 12—31. O. Anuradhapnra, 17,345'
■ 0 ■ *.
Evidence—Confession—Hearsay—Evidence Ordinance, s. 26-{I).•■-
– – Evidence given by a police officer, at the trial of an accused person, that the' accused was arrested in consequence of a statement mado by tho accused to thepolico officer is obnoxious to tho provision in section 25 (1) of tho EvidenceOrdinance that “.no confession made to a polico officer slinll be proved as against. a person accused of any offence.-•
A polico officer’s evidence that ono of several accused mado a statement tohim implicating tho o'thers is inadmissible hearsay as against tho others. ■'■'
ISO
GUXASEKARA, J.—The Queen v. Victor Perera
A , – ‘
z A.pr’BALS against certain convictions in a trial before the Supreme.Court. .•'.' _
G. S. Barr Kumarakulasinghc, with J. G. Thurairatnam, G. F. Sethu-khvalcr and Noel Silva, for accused-appellants.
Ananda Pereira, Crown Counsel, for the Attorney-General. '
. 1
■Cur. adv. vidi.
February 28, 1955. Gukasekara, J.—-
At tho close of the argument in appeal in this case we set aside theconvictions of t-lie six appellants and the sentences passed on them anddirected a new trial upon the indictment as amended at the last trial,and we said that we would give our reasons later.
The indictment, which contains seven counts, charges the appellantswith offences of xinlawful assembly, house-breaking by night, robberyand murder alleged to have been committed on or about the 31st January,1954. In its original form it alleged, in the fourth count, that the offenceof murder was committed in prosecution of the common objects of theunlawful assembly or was such as the members of the unlawful assemblyknew to be likely to be committed in prosecution of those objects. Thelearned judge directed the jury, who had been provided with copies of theindictment, that they “ must delete from that fourth count the words* was committed in prosecution of the said common objects or ’ ”, andthat their verdict on that count must be “ a verdict not on the chargeas worded in count 4 of the indictment but with those words deletedHe then read out count 4 as amended in this manner and went on to dis-cuss the meaning of the count “ as amended As there was some dis-cussion on this point at the hearing of the appeal ve wish to make itclear that in .our opinion the indictment must be taken to have beenamended by the learned judge in the manner indicated in his summing up.
The case for the prosecution depended on the evidence of an IS yearold young man, named Ivapuru Banda, who claimed to have accompaniedthe appellants to the scene of the alleged crimes and to have been presentthere when they were committed. This witness, as the learned judgedirected in his summing up, it was open to the jury to regard as an accom-plice in those crimes if they were not satisfied with the explanation thathe gave of his presence at the scene. His evidence is also open to thecriticism that it was belated, for according to the prosecution he made nostatement until he was questioned by an inspector of police three daysafter the appellants had been arrested. It was urged on behalf of theappellants, among less substantial groxmds of appeal, that the defencewas prejudiced by' the terms in which the learned judge summed up theevidence of the inspector about the investigations that led to the arrests.
GUNASEICAJR A, J.—The Queen v.' Victor Perera
1ST
The police began' their investigations on the Jst February but, in theinspector’s words, they “ had nothing to work on ” until the night of the8th, when he came by some information as a result of which he had the '4tli accused-appellant brought before him. “ 4th accused was broughtbefore mo ”, he says, " at 3.30 a.m. on 9.2.54 at the Kekirawa policestation. I recorded his statement and in consequence of that I tookhim under arrest and decided to go to Nikawewa Wadiya ”. He arrivedat this wadiya at 7 a.m., accompanied by some other police officers andtaking the 4th accused with him, and he arrested the 1st and 3rd accusedthere and the Gth accused in an adjoining wadiya. From there, accordingto him, the police party went in search of the 2nd and 5th accused. Theymet the 5th accused about 3 miles from Nikawewa and the inspectorarrested him. “ X did not know him before ”, he says. “ He waspointed out to me by the 4th accused. ” They wont a further mile and ahalf to Yakkala, arriving ther.e at S a.m.. and there the inspector arrestedf lie 2nd accused.
Discussing the inspector's evidence the learned judge said in hissumming up :
“ Then he says he got down a man called Albert and having questionedthat Albert he got down the fourth accused during the, early hours ofthe morning of the 9th February and that after recording the fourthaccused’s statement the whole investigation gathered a great deal ofmomentum and events moved swiftly. On the 9th morning thePolice party went straight to Nikawewa and arrested the first, third,fourth and sixth accused …. On the way back from Nikawewathe fifth accused was seen walking along the bund and he was arrested.They were all handcuffed and taken to the Yakkala bazaar wherethe second accused who was standing near a boutique was arrested. ”
The appellants submit in their grounds of appeal that “ the learned judge’s •reference to the fact that the Police investigations gathered momentumafter the 4th accused had made a statement to the Police and that thearrest of the other accused followed immediately after the recording ofthe said statement, was suggestive of a confession made by the 4thac-cuscd and seriously' prejudiced the defence ”.'
The evidence that has been’ referred to was giv en by the inspector inanswer to questions put byr crown counsel in examination in chief. Theevidence that tlie 4th accused was arrested in consequence of his statementto the inspector could, if believed, prove that the 4th accused made aconfession to him and it is therefore obnoxious to the provision in section25 (1) of the Evidence Ordinance that “no confession made to a policeofficer shall be proved as against a person accused of any offence ”. Inthis respect the present case cannot be distinguished from that of ObiyasAppuhamy v. The Queen. 1 The inspector’s evidence further suggests thatthe 4th accused also implicated the other appellants in the crimes in
{1952) 54X.L.R. 32.
18S' liASSSTAYAK-B, C.J.—Bank oj Ceylon v. JZulatiUckc.■.
question, and therefore contains inadmissible hearsay as against them.It is not possible to say that “ no substantial miscarriage of justice haaactually occurred.” in spite of the admission of these items of inadmissibleevidence, and theeonvictions were therefore quashed.-
• . • -• • ,The evidence.in question was not objected to at .the trial. The appel-lants did not give evidence or make statements,- cither at the trial orbefore the magistrate, and called no witnesses on their behalf. In orderinga new trial we have taken into account these features in the case and alsothe consideration that a jury -may well be satisfied that Kapuru Bandawas not an accomplice in the crimes in question and is a credible witness.
New trial ordered.