( 387 )
Present : Dalton J.
• 'WEEEASINGHE v. DEONIS.698—P. C., Galle, 28,142.
rarest Ordinance, 1907—Charge under section 21 (1)—Evidence of similaroffence—Admissibility—Evidence Ordinance, s. 167.
In' a prosecution under the Forest Ordinance, evidence that theaccused had been previously convicted of a similar offence' isinadmissible.
PPEAL from a conviction under section 21 (1) of the ForestOrdinance of unlawfully and without the permission of the
Government Agent clearing up Crown land. The defence of theaccused was that he was an employee of a man named Jayasekerewho, so far as he was aware, was the owner of the land. Evidencewas then led on behalf of the Crown to show that Jayasekerehad made claims on previous occasious on other lands and hadbeen prosecuted and convicted for those acts. It was also provedthat in a case, in which Jayasekere was convicted, the appellanthimself was an accused party. Despite objection the Pob 56Magistrate admitted the evidence and convicted the accused.
1 2 C.L. R. 113.
I ( 888 )
1927. January 28, 1927. Dalton J.—
'fhis i6 a case arising under the Forest Ordinance of 1907. The*appellant has been convicted on a charge of unlawfully and without
.the permission of the Government Agent, clearing and breakingup the soil of Puwakgahahena, which is a land at the disposal of the•jCrown and not included in a reserved or village forest. Thatcharge is laid under the provisions of section 21 (1) of the Ordinance;under that section power is also given to the Governor in Councilto make rules with respect to any forest or any particular forest.The material rule in question in this case is the first rule of the rulesframed for forests in the Government Gazette of July 18, 1918.That rule is in the following terms: —
M No land at the disposal of the Crown shall be cleared for chenacultivation without the permit of the Government Agentof the Province, or the Assistant Government Agentof a district of the Province for his district."
The accused was fined Us. 15. Certain grounds of appeal wereproposed to be argued by Mr. de Zoysa on h:s behalf, but it is cleatthat only the fourth ground can be argued: that is a matter of lawwhich is duly certified in the Petition of Appeal by a Proctorof the Supreme Court. That ground is to the effect that evidencehas been wrongly admitted, which evidence influenced the judgmentof the Magistrate so as to cause the Magistrate to convict the accused.The defence of the accused in respect of his action is that be wasthe employee of a man named Jayasekere, who so far as he wasaware was the owner of the land in question. Evidence wasthereupon led on behalf of the prosecution to show that Jayasekerehad made various claims on previous occasions to other Crownlands, and had been prosecuted, and had further been convictedfor those acts. It was also proved by the prosecution that in thesecond case in which Jayasekere was convicted the appellant^himself was an accused party. Then the Chief Clerk of the Police-Court of Galle was called and produced records in the cases, whichrecords went to show that Jayasekere and others had been convictedfor offences similar to the offence charged, and that one of thoseothers was the present appellant. Objection was taken to thatevidence being led at the time, but the Mag:strate apparently.without going into the objection merely ruled in the following words:
The evidence may go in. " Therefore at the close of the casefor tiie prosecution the learned Magistrate had admitted evidenceto show that on a previous occasion the accused had been convicted.of a similar offence. In supporting the admission of that evidencefCrown Counsel has argued that the evidence is admissible in viewof the defence, for the purpose of showing the state of mind of theaccused in the present case; that inasmuch as he had previously
( 389 >
been convicted of clearing Crown land together with Jayasekere, 1927* ,
that that fact showed that he was not acting bona fide in cultivating
or breaking up the land alleged in the present case.
The question of admission of this class of evidence has been v• Deonisdealt with at length in King v. Seneviratne.1 In that case the case'of Makin v. The Attorney-General of New South Wales,2 is citedand followed. I might read here an extract from that latter casewhich forms a clear guide to one in deciding whether or not in thiaparticular case the evidence was rightly or wrongly admitted.
Lord Herschell in that case says: —
“It is undoubtedly not competent for the prosecution to adduceevidence tending to show that the accused has been guilty,of criminal acts other than those covered by the indict-ment, for the purposes of leading to the conclusion that-the accused is a person likely from his crim’nal conductor character to have committed the offence for which heis being tried. On the other hand, the mere fact thatthe evidence adduced tends to show the commission ofother crimes does not render it inadmissible if it be relevantto an issue before the jury, and it may be so relevant-if it bears upon the question whether the Acts allegedto constitute the crime charged in the indictment weredesigned or accidental, or to rebut a defence which would-otherwise be open to the accused. The statement ofthese general principles is easy, but it is obvious that itmay often be very difficult to draw the line and to deeidewhether a particular piece of evidence is on the one side .or the other/'
It is obvious as pointed out there that it is very difficult _ todraw a line, but it is vety difficult to my mind to say inthis particular case that the evidence complained of was notled for the purpose of showing that the accused, having beenconvicted of a similar offence with Jayasekere before, was in alllikelihood a person who, from his criminal conduct or character,had committed the offence now charged with. I personally amquite satisfied I shall not have admitted that evidence, .and CrownCounsel himself admits that if he had been the Magistrate he wouldhave been inclined to reject that evidence. It seems to me as Istated that the evidence admitted was evidence which shouldnot have been admitted.
The question remains then to decide if it was admissible, has itinfluenced the Magistrate in his judgment ? If we refer to thejudgment it will be found that the Magistrate came to the con-clusion that, although the accused was a tool, as he calls him, in'the hands of Jayasekere, he did not believe he was acting in good
» 27 N. L. R. 100.
* 1894. A. C. 07 (0$).
lflgfrtfai®V]"'Ifc is* quite impossible lor rhe to say, as I must say if thd‘
Dalton if; ^otiviction is to be upheld, that the Magistrate was not mfluehdedZTTT-k:that evidence which was wrongly admitted. There is a further
point.however, as it has been argued that the Crown, having shownthat the .land was Crown land and that the accused broke, up thatland, have shown that. he had then committed an offence, undetthe Ordinance in the absence of any proof by him that woifldgive him the benefit of sections 38 and 72 . of the Penal CodeuSection 72 provides, jihat an act done by a person by a mistake ohfact, believing himself to be justified, by law shall not be an offence*.This question is fully dealt with in the judgment of this Court inWeerakoon v. Ranhamy r when .the court held in the case of anoffence under section 21 of the Forest Ordinance,, that that 'was anenactment whi6h belonged to a special and unqualified class ofprohibitions, yet it wag subject to the provisions of section 72 ofthe. Code.
The argument put before me is that the accused has in factmade no defence. He has given no evidence that he was actingunder a bona fide mistake of fact. That’ is so. On the other hand,it seems to me that anL ignorant'rhari, and I take it the appellantis an ordinary villager, ’ .niight well’ think that when the Crownhad led evidence to show that he had been previously convictedit was hardly worth his while going into the witness box to statethat in the particular case before the Court, he was in fact actingunder a bona fide mistake of fact. I ana not satisfied hfe wouldnot. have done so if that evidence had nbt been wrongly led by theprosecution. Then it was suggested that under the provisionsof section 167 of the Law of Evidence the improper admission ofevidence is no ground for a new trial, or even for the reversal of aqydeeisjon if it appears to the Court that.independently of the evidenceobjected to and admitted^ there was sufficient evidence to justifythe decision. As I stated before, I am not able .to say that if thisevidence had not been admitted the Magistrate would have. cometo the conclusion.that^the accused was not act'ng bona fide. L arqfurther not satisfied that if this evidence was not – admitted theaccused himself might not have -given evidence to. show that .liewas acting bona fide.
.Taking .the case as a whole it seems to me that the convictiobmust be set aside, because it is impossible for this Court to sav thatthe Magistrate has not been influenced in his conclusion as to theguilt of the accused, by that; evidence, of,the previous conviction.I would '.‘therefore allow .the appeal and set aside the conviction.No. ^question. is of; course decided* as* to [the rights of ajay-parties-to: the Hand.); –
Conviction set aside.
* 23 N. L. R. 33.
WEERASINGHE v. DEONIS