105-NLR-NLR-V-34-VAN-CUYLENBERG-v.-CAFFOOR.pdf
DALTON S.P.J.—Van Cuylenberg v. Caffoor.
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Present: Dalton S.P.J.
VAN CUYLENBERG v. CAFFOOR.
540—P. C. Colombo, 42,516.
Criminal Procedure—Refusal to answer questions put by Police Officer—
Tendency to incriminate—Latitude to witness—Criminal Procedure
Code, s. 122 (2), Penal Code, s. 177.
Where a person who was bound to answer questions put to him taya Police Officer, in terms of section 122 (2) of the Criminal ProcedureCode, refused to answer them on the ground that they would havea tendency to expose him to a criminal charge,—
Held, that in order to entitle a person to the privilege of silence undersuch circumstances, the Court must see that there is reasonable groundto apprehend danger to such person from his being compelled to answer.
If the fact of the person being in danger be once made to appear,great latitude should be allowed to such a person in judging for himselfof the effect of a particular question, since a question which mightappear at first sight a very innocent one might, by affording a linkin a chain of evidence, become the means of bringing home anoffence to him.
A
PPEAL from a conviction by the Police Magistrate of Colombo.The accused was charged under section 17.7 of the Penal Code,
that being legally bound under the provisions of section 122 (2) of theCriminal Procedure Code to answer truly the questions relating to anoffence, put to him by an Inspector of Police inquiring into the matter,refused to answer them. He was convicted and sentenced to six months’simple imprisonment.
Hayley, K.C. (with him R. L. Pereira, K.C., H. V. Perera, and Ismail), foraccused, appellant.—This conviction is under section 177 of the PenalCode. The requirements of that section are—(i.) The person must be
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DALTON S.P.J.—Van Cuylenberg v. Caffoor.
legally bound to speak the truth; (ii.) He must refuse to answer; (iii.jThe question must be one touching the subject on which he is legallybound to answer. The only question in this case was, who was the driverof the offending car? At the identification parade accused was identifiedas the driver by three persons. At the inquest in the evening the In-spector “produced” him, i.e., probably under arrest. He then told theaccused to come to the Police Station in the evening and there put himthe two questions. The appellant was therefore either an accused or sonearly an accused that the answer's would have tended to expose him to acriminal charge. The word used is “ charge ” not “ conviction ”, i.e.,the possibility of a prosecution. (Deheragoda v. Alwis.') The principleof the English law hi the same as in this section. The rule was that itwas absolutely in the discretion of the witness to say whether the answerwould ter d to incriminate him or not unless of course his refusal wasobviously frivolous. (Regina v. Boyes.*) The principle goes only to theextent that the Court may satisfy itself of the bona fides of the witness.The widest discretion is given to the witness. This provision is not onlyfor the protection of the guilty but also of the innocent. (Fisher v.Ronalds8; Adams v. Lloyd.*) The English law is dealing with evidencewhere the witness has the assistance of Counsel and the Court. The rulein Ceylon should be stricter where a person has to rely solely on himselfto decide whether an answer would tend to incriminate him or not.
lllangakoon, Acting S.-G. (with him Pulle, C.C.), for respondent.—Aperson acquainted with the circumstances of a case is as a general rulebound to answer all questions put to him by a Police Officer. (Section122 (1) and (2) Criminal Procedure Code.) An exception is providedwhere a question has a tendency to expose a person to a criminal charge.Burden of proof is on accused to prove he comes within exception. Seesection 105 Evidence Ordinance. Section 122(2) embodies maxim
“Nemo tenetur seipsum prodere.” Various ways in which onus could bedischarged: — (i.) By stating, on oath, answer to question would criminate.Protection could be sought, if necessary, under section 132 EvidenceOrdinance; (ii) by cross-examining prosecution witnesses—procedureadopted in Deheragoda v. Alwis {supra). English cases lay down theprinciples which should guide Court in determining whether witness wasor was not justified in refusing to answer. Bare possibility of legal perilis insufficient. Substantial grounds must be shown. Objection must bebona fide and genuine for witness’s own protection and not to save friend.Court has to decide from all circumstances of case. Old rule in Englandwas that it was absolutely within witness’s discretion whether to answeror not (Regina v. Boyes ; In re Reynolds (supra) ). The refusal to answerin this case was merely to prevent the Police from discovering the realculprit, namely, accused’s brother. The two questions the Police askedare not incriminating nor would true answers to them have exposed himto criminal charge. The mere fact that certain witnesses had mistakenlyidentified accused and hence the Police suspected him would not entitle
1 1C N. L. ft. 233.30 L. J. Q. B. 301; In rc Reynolds {20 Ch. D. 294).
a (1852) 12 G. B. 7G2.*27 L. J. Exch. 499.
DALTON S.P.J.—Van Cuylenberg v. Caffoor.
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him to claim the privilege of refusing to answer. Test is not what otherpeople have said or done but whether if witness gave true answer it wouldhave had a tendency to incriminate him.
April 10, 1933. Dalton S. P. J.—
The appellant, Zubayr Caffoor, has been convicted on a charge laidunder section 177 of the Penal Code, that being legally bound under theprovisions of section 122 (2) of the Criminal Procedure Code to answertruly the questions relating to an offence that concerned the violent deathof one W. Podisingho, put to him by an Inspector of Police inquiringinto the matter, he on July 13, 1932, refused to answer certain questionsput to him by the Inspector, a public servant. The questions referredto in the charge were—
Where were you last evening ?
Did you travel in either the Hillman or the Vauxhall car ?
The evidence shows that appellant refused to answer the first question,and stated “ I reserve my answer ”, in reply to the second. He hasbeen convicted and sentenced to undergo six months’ simple imprison-ment, the maximum sentence of imprisonment under the Ordinance.
The facts leading up to the incidents, out of which the charge arises,show that on the evening of July 12 one W. Podisingho received veryserious injuries as the result of a motor car collision on the Galle Faceroad near the Colombo Club, from which he died that night or early onJuly 13. The complainant, Inspector Van Cuylenberg, went , to the spotand found that car X-1078 had collided with car X-371, and that the mannamed Podisingho had been seriously injured. Car X-1078 was aHillman car. There is no evidence to show of what make X-371 was,but that happens to be immaterial, for it is not the Vauxhall car referredto in the second question. The Vauxhall car referred to in the secondquestion was one which at the time of the collision was being drivenimmediately behind the Hillman car X-1078. The Inspector madevarious measurements and then proceeded with his inquiries as to whowas the driver of car X-1078 at the time of the collision. The car wasempty when he arrived at the scene, but he obtained statements thatnight from Yuspof Caffoor and Mohideen Caffoor, brothers of appellant,that they were occupants of the Hillman car at the time of the collision;he also obtained a statement that night from one Podiappuhamy, anemployee of the Caffoor family, that he was driving the car X-1078 atthe time. Next morning (July 13) Podiappuhamy went back on thatstatement, denied he. drove the car at the time, and stated he wasinduced “ by one of Caffoor’s sons ” to say he drove, as it was a trivialmatter. These sons are four in number, the appellant, Yusoof, Mohi-deen, and Falil. The Inspector then continued his inquiries as to whowas driving car X-1078 at the time of the collision. His informationwas that'the driver was one of Mr. Caffoor’s sons. On. the afternoon ofJuly 13 he held an identification parade. Appellant was put into theline with others, but the evidence does hot show if any of his brothers
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were also in the line. At that parade a Police Constable picked out theappellant as the person he saw driving the car that night when he passedhim at Chatham street in the Fort. Two other persons also identifiedappellant . as like the person who drove the car that evening. TheInspector at the termination of the parade clearly had reason to suspect thatappellant might be the person of whom he was in search, as responsiblefor the death of Podisingho.
The next step is the inquest at the hospital later that afternoon.There, the Inspector says, he “ produced ” Mohideen, Yusoof, appellant,and Podiappuhamy before the coroner. There is no evidence on recordin this case to show what witnesses were examined at the inquest exceptPodiappuhamy, who repeated his statement that he had been inducedby one of Mr. Caffoor’s sons to say he drove car X-1078. No name was,however, mentioned. What was the result of the,inquest is not stated,but after its conclusion the Inspector asked appellant to come to thePolice Station, where he arrived at 6.30 p.m. According to the evidence,without any preliminaries or explanation as to what he was wanted for, theInspector asked him, “ Where were you last evening ”? The appellantrefused to answer the question. He then asked him whether he was oneof the occupants of the Hillman or the Vauxhall car on the night of theaccident. To that appellant answered, “ I reserve my statementOn this refusal he was bound over under the provisions of section 126 ofthe Criminal Procedure Code to appear, if and when so required, before thePolice Court, be it noted, as a suspected person, not as a witness. Atno time did the Inspector call appellant’s attention to what he was doingor caution him, or inform him that he was compelled to answer questions,or that he might incur any liability in refusing to do so. There is noreason to doubt, in my opinion, that appellant was at that stage suspectedby the Inspector as being the person for whom he was looking, namely,the driver of the car and responsible for the collision, that he was seekingto obtain from appellant information that might assist him (the Inspector)on this point and that appellant was in danger of a charge being broughtagainst him. There is in the circumstances some cause for thinking thatat that time the Inspector was himself under the impression that hecould not legally insist on obtaining answers from appellant to his ques-tions. Subsequent events proved that he was not the driver, but heknew on July 13 he was suspected, although innocent. It was on July 19that a charge was eventually brought against Yusoof Caffoor as thedriver of car X-1078, on which I am informed he has since been convicted.This charge against the appellant under section i77 was then broughtagainst him on July 23.
The law applicable in a case such as this, where a person being ques-tioned claims the privilege of silence, Mr. Illangakoon agrees is the sameas that applicable in the case of a witness claiming the privilege in ajudicial, proceeding. I need therefore only refer to two of the cases citedon that point during the argument. There appears to have been someuncertainty prior to these decisions as to whether the witness or the
DALTON S.P.JVan Cuylenberg v. Caffoor.437
Judge was to decide whether the question to which an answer was soughtmight have a tendency to place the witness in danger, but the law now isbeyond any doubt. In Regina v. Boyes1 Cockburn C.J., in whose judg-ment Crompton, Hill, and Blackburn JJ. concurred, held that a barepossibility of legal peril was not sufficient to entitle a witness to protection,nor was the witness the sole judge as to whether his evidence would bringhim into danger of the law. He continues, “ To entitle a party called asa fitness to the privilege of silence the Court must see from the circum-stances of the case and the nature of the evidence which the witness iscalled to give that there is reasonable ground to apprehend danger fromhis being compelled to answer”. He then goes on to point out that ifthe fact of the witness being in danger be once made to appear, greatlatitude should be allowed to him in judging for himself of the effect ofany particular question, since a question which might appear at firstsight a very innocent one, might, by affording a link in a chain of evidence,become the means of bringing home an offence to the party answering.The danger to be apprehended, he says, must be real and appreciablewith regard to the ordinary operation of the law, not a danger of animaginary and unsubstantial character, or a mere remote or nakedpossibility out of the ordinary course of law.
In Ex parte Reynolds 3 this view of the law was approved of by the Courtof Appeal. There Jessel M.R. says, “ That decision (Regina v. Boyes) asit appears to me, states the law correctly, and if it were necessary for theCourt of Appeal to affirm it, we should I think be doing well and wiselyin saying that we do affirm it ”. He goes on to point out, however, thateven the" earlier decisions made an exception in the case of mala fides. Ifa Judge thinks a witness is objecting to answer, not bona fide with theview of claiming privilege for himself, but in order to prevent otherparties from getting that testimony which is necessary for the purpose ofjustice, the law requires that the witness should answer.
Several defences were put forward by the appellant in reply to thecharge, but for the purpose of this appeal I need only consider one, thatappellant was not legally bound to answer the questions under theprovisions of the section 122 (2) to which I have referred. I regret I amunable to agree with the learned Magistrate when he says, “ it is clear ”that accused’s answers would not have incriminated him. “ It is clear ”•he says, because in fact the appeUant has not been charged in the motorcar case. He goes on to consider the answers he might have given.“ If he said ‘ No ’, the Police would have known he could give no helpIf he said ‘ No ’, it seems to me on the information the Police had onJuly 13, they might have hesitated to believe him. The Magistratecontinues “ if he had said * Yes ’, they would have known he could helpthem ”. If he had said ‘ Yes ’, it seems to me, as matters stood on July13, he might have been at once arrested, and a charge brought againsthim. The learned Magistrate has misdirected himself on more than onepoint, and he seems to have assumed that the Inspector required appellant1 30 L. J. Q. B. 301.2 20 Ch. D. 294.
34/32-
438
Paulusz v. Perera.
as a witness only, entirely overlooking the evidence of which the Policewere in possession, when the questions were put to him on July 13, thatappellant himself was the driver of the offending car.
Applying the law I have set out to the facts of this case, the questionsset out in the charge, put to the appellant by the Inspector, were in thecircumstances questions which under the provisions of section 122 (2) ofthe Criminal Procedure Code he was not compelled to answer as beingquestions which would have a tendency to expose him to a criminalcharge. It is not necessary therefore to consider the farther grounds ofappeal argued.
For the above reason the conviction cannot stand, the appeal beingallowed, and the conviction quashed.
Appeal allowed.
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