098-NLR-NLR-V-69-THE-QUEEN-v.-W.-M.-SUGATHAPALA.pdf
457
The Queen v. Sugathapala
[Court of Crimin al Aiteal]
1967Present: H. N. G. Fernando, C.J., (President),Abeyesundere, J., and Alles, J.THE QUEEN v. W. M. SUGATHAPALAAppeal No. 44 of 10G7, with Application No. 58S. C. 175—M. C. Nawalapitiya, 434
Evidence Ordinance—Section 27 (I)—Scope o] expression “ in the custody of a policeofficer ”—Accused in custody of Fiscal—Statement made by him then to a policeofficer—Admissibility—Criminal Procedure Code, ss. 122 (3), 126A, 2S9A,Form No. 7A of Schedule 2.
A statement made by an accused person to a police officer during the timewhen he is in the custody of tlio Fiscal in consequence of an order mado by aMagistrate romanding him is not a statomont mado by him whilo he is “ in thecustody of a police oflicor
The accused-appollant, who was alleged to have committed murder on15th July 1965, was arrested and in police custody until the afternoon of 16thJuly, when the Magistrate held an inquiry at tho scone of the alleged offence.At the end of the inquiry, tho Magistrate mado order remanding the appellantto the custody of the Fiscal. Shortly after this order was made, the appollantmade a statement to a Police Inspector in tho courso of wliich ho said “ I canpoint out the spot to tho police where it is buriod ”, He then accompanied thoInspector and pointed out a spot in which the police found a knife buried.Evidence was lod, at tho trial, of tho statement mado by tho appollant and ofthe discovery of tho knife.
Held, that tho statement of the appellant was usod in evidence in breach ofBoction 122 (3) of tho Criminal Procedure Codo. The statement, although it wasmado to a police officer, was not within tho scopo of section 27 (1) of thoEvidence Ordinance bocauso tho appellant, when he made it, was not in thecustody of the police officer.
APPEAL against a conviction at a trial before the Supreme Court.
Colvin R. de Silva, with M. L. tie Silva, I. S. de Silva and C. Ganesh(assigned), for the accused-appellant.
Siva Pasupati, Crown Counsel, for the Crow n.
Cur. adv, vult.
LXIX—201»H 5144 (7/67)
458H. N. G. FEKNANDO, C.J.—The Queen v. Sugathapala
June 16, 1967. H. N. G. Fernando, C.J.—
This appellant was convicted of murder on evidence which was entirelycircumstantial, the principal item of which consisted of a statement madeby the appellant himself. The submission that, but for this item ofevidence, the conviction was not justified, has not been contested bythe Crown.
It would appear that the appellant was arrested on the day of thealleged offence, 15th July 1965 and was in police custody until theafternoon of 16th July, when the Magistrate held an inquiry at the sceneof the alleged murder. At the end of the inquiry, the Magistrate madeorder remanding the appellant to the custody of the Fiscal. Shortlyafter this order was made, the appellant made a statement to a policeInspector in the course of which he said “ I can point out the spot to thepolice where it is buried He then accompanied the Inspector to thefield and pointed out a spot in which the police found a knife buried.Evidence was led at the trial of the statement and of the fact that theknife was found in the circumstances just mentioned.
It was argued in appeal that the use of the statement at the trialcontravened s. 122 (3) of the Criminal Procedure Code, as being a state-ment made in the course of an investigation under Chapter XII of theCode, and that the statement was not within the scope of s. 27 of theEvidence Ordinance because the appellant, when he made it, was notin the custody of a police officer.
A controversy which had existed for some years in our Courts overthe apparent conflict between s. 122 (3) of the Code and s. 27 of theEvidence Ordinance was settled by the judgment of the JudicialCommittee in B. v. Bamasamy 1 holding that “ evidence falling withins. 27 can lawfully he given at a trial, even though it would be otherwiseexcluded as a statement made in the course of an investigation unders. 122 ”. The circumstances relating to the particular statement whichwas held in that case to have been properly admitted are thus referredto in the judgment:—
“In addition to these witnesses a police sergeant Javawardene wascalled by the prosecution for the purpose of deposing to a statementmade by the respondent in consequence of which “ the ” or at anyrate “ a ” gun was discovered. It has not been in dispute that atthe time of making the statement the respondent was in the custodyof the police and that the statement was made by him during thecourse of a police investigation by sergeant Jayawardene. ”
The judgment, in thus referring to the fact that “ the respondent wasin police custody ”, appears to have regarded that fact as being a conditionof the admissibility of the statement in evidence. 1
1 < mi) 66 N. L. X. 265.
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H. N. G. FERNANDO, O.J.—The Queen v. Sugathapaht
One further matter which must be taken as settled by Ramummy'scase is that s. 27 of the Evidence Ordinance is an exception to both s. 25and s. 26. The statement in that ease was made to a police officer, andhence the decision that it was properly admitted in evidence meansthat s. 27 permits proof of a statement to a police officer made by aperson in police custody. But that case did not decide the questionnow raised, which is whether s. 27 permits proof of any statement madeby a person not in police custody.
This question involves consideration ot the purpose or intention ofs. 27, which has to be inferred if possible from the terms of the sectionand the context in which it occurs. In sections 25 and 26, two prohibi-tions arc- enacted, i.e., prohibition of the proof of (1) a confession to apolice officer, find (2) a confession made by a person in police custody(except in the presence of a Magistrate). S. 27, being a proviso to bothsections, must prima facie be regarded ns indicative of an intention topermit proof of a statement which is a confession. But in fact s. 27covers certain statements which may or may not be confessions ; itauthorises proof of “ information received from a person accused of any
offence, in the custody of a police officer, whether it
amounts to a confession or not”. Insofar as s. 27 deals
with information which does not amount to a confession, s. 27 is notproperly a proviso to sections 25 and 26, and it d'rectly authorises proofof such information. If the information amounts to a confession, thens. 27 excludes the information from the prohibitions against proof ofconfessions which are enacted by sections 25 and 26. But this analysisof the three sections provides no explanation of the reason why s. 27appears on its face to restrict the “ admissible ” information by the
qualification “ received from a person in the custody of a
police officer ”. That same qualification is repeated in sub-section (2)of s. 27 which declares that sub-section (1) shall also apply to informationreceived from a person, “ when such person is in the custody of a forestofficer or an excise officer
The application of the maxim ijeneralia specialibus non derogant doesnot support the construction that s. 27 was intended to permit proof ofinformation received from a person not in police- custody despite theprohibition in s. 122 (3) of the Criminal Procedure Code. The specialrule of evidence as expressed in s. 27 does not in terms permit proof ofsuch information. S. 27 undoubtedly appears to be defective in thatit does not permit proof of information which might reasonably beregarded as being more reliable for the very reason that it is given by aperson not in custody. That defect is perhaps attributable to an incorrectassumption that such information could be proved without proof of itbeing specially authorised by s. 27. But a statute • framed on anincorrect assumption cannot be construed by a Court into an alteredform which it might have had but for the assumption.
Counsel for the Crown put forward two arguments in support of theuse of the appellant’s statement in the present case.
460
Don Peiria v. Maraainghe
It was argued firstly that the appellant was not in fact in police custodywhen he made the statement. Counsel suggested that there is nothingin the record to show that a Fiscal’s officer was present at the scene, andthat therefore the appellant must have continued to be in police custodydespite the Magistrate’s order of remand to the Fiscal. This suggestionis unacceptable in view of the terms of s. 126 A of the Code, and the formNo. 7A of the warrant of detention on a remand. The warrant directsthe Fiscal to take and convey to a prison the person who is remanded,and s. 289A requires the warrant to be delivered to the Fiscal, “ whoshall take charge of the person named therein The presumptionmust therefore be that a Fiscal’s officer did take charge of the appellantwhen the order of remand was made by the Magistrate, and there isnothing on record to counter that presumption.
Secondly it was argued that the phrase “ in the custody of a policeofficer ” occurring in s. 27 must be read as “ although in the custody ofa police officer ” or as “ whether or not in the custody of a police officerIt may have been open to a Court to construe or alter the phrase in thatmanner if it were clear that the true intention of the Legislature, inenacting s. 27, was to permit proof of a statement made by a person notin police custody. Our reasons for the opinion that the Legislaturehad no such intention have been stated earlier.
For these reasons, we are driven to the conclusion that the statementof the appellant was used in evidence in breach of s. 122 (3) of the CriminalProcedure Code. But for that item of evidence the conviction wouldhave been unreasonable. We therefore set aside the verdict and sentenceand direct that a verdict of acquittal be entered.
Accused acquitted.