KING v. PERERA

124-NLR-NLR-V-31-KING-v.-PERERA.pdf


( 449 )
Present: Jayewardene A.j.
KING v. PERERA.61—D. C, {Grim.) Nuwara Eliya, 145.
Handwriting expert—Uncorroborated testimony of expert—Unsafe toconvict.
It is not safe to base a conviction solely on the evidence of anexpert in bandwriting.
A
PPEAL from a conviction by the District Judge ofNuwara Eliya.. The facts appear from the judgment.
R. L. Pereira, K.C. (with R. 0. Fonseka), for accused appellant.Crosette-Thambiah, C.C., for respondent.
July 9, 1930. Jayewardene A.J.—
The accused was charged with dishonestly signing a false docu-ment, a pari-mutuel pay-out chit for Rs. 1,000, on February 13,1929, at Nuwara Eliya with the intention of causing it to be believedthat it was signed by one S. A. Perera, and also with abetting thecommission of the offence of criminal breach of trust in respect ofthe said sum by some person unknown. The accused was convictedand sentenced to six months’ rigorous imprisonment.
The Ceylon Turf Club employs about twenty pay-out clerks, twosupervisors, and a cashier at Nuwara Eliya, who work inside onebuilding. The pay-out clerks when they require funds fill up arequisition and sign it, obtain the initials of a. supervisor, andpresent the chit to the cashier, who pays the amount to the clerk.
On February 13, it was discovered that .a sum of Rs. 1,000 hadbeen paid out on a forged chit (PI) to a pay-out clerk who sighedhimself “ S. A. Perera ” for race No. 1, window No. 3. There wasno pay-out clerk bearing that name, and that window, it was found,was not working on that day. Suspicion rested on a pay-out clerknamed E. V. Dep who worked at window No. 2. Mr. Hutchins,the supervisor, thought that the person who handed him the. chitto be initialled was a dark person who resembled Dep. The figure“ 3 ” in the impugned document was also said to resemble thefigure “ 3 ” in Dep’s paying-out statement (P23).
The accused, K. G. Perera, was employed as a clerk in the 50-centsweep. The Police Inspector noticed certain similarities in theaccused's signature and the impugned one and skilfully obtainedfurther specimens of his writing and prosecuted the accused. Thereis no direct evidence of any kind against the accused. No one hasseen the accused write or sign the forged chit, and no one is able toidentify him as the person who presented it or to whom the moneywas paid out, nor are there circumstances of any value that would
15J. N. B 11394 (10/51)
1880
1930
Javewab-dede A.J.
Kingv.
Perara
( 450 )
serve to connect the accused with this forgery. The accused workedat the 50-cents sweep in another building, and would normallyhave no access to the supervisor who initialled the chit or to thecashier who paid the money. I think that it is clear that the chit(PI) was presented by a person working inside the*building who knewthe system of work. Dep in .his evidence stated that he stayed at-Nuwara Eliya during this meet with the accused and his brother.
If Dep is innocent, the circumstance is of no value at all, but if Depwas a party to the fraud, his evidence being that of an accompliceneeds corroboration and would be viewed with suspicion. In anyevent the fact that Dep and the accused lived together does notlead us far, but it may show that he had opportunities of acquaintinghimself with the accused’s writing and of imitating it if he wished.The whole case thus rests on’ the evidence afforded by a comparisonof handwriting. On the one side we have several documentsproved to be in the accused’s writing, and on the other side .only one document (PI) which contains the writing in question.Mr. Symons, the handwriting expert, was of opinion that the personwho wrote the signature “ S. A. Perera ” on (P.1) also wrote thesignatures “ K. -T. Perera ” on documents (P2), (P3), and (P6) to (P21).He had no doubt whatever on the point. He was also of opinionthat the same person who wrote the body of (PI) also wrote the bodyof writings shown in (P4) and P5. It has been proved that (P4) and(P5) were written by the accused.
In Soysa v. Sanmugam,1 Hutchinson C.J. observed that he hadknown too many instances in which experts’ opinion as to identityof handwriting had been proved to be mistaken to accept them, asanything more than a slight corroboration of a conclusion arrivedat independently, never so strong enough as to turn the scale againsta person charged with forgery', if the other evidence is not conclusive.He also expressed his belief that the •comparisons of handwritingsare a very untrustworthy guide, and pointed out that the Courtshould make up its mind first, entirely uninfluenced by the expert'sopinion, and must be first satisfied that the evidence on the mainpoints was true.
In Gresswell v. Jackson,2 Cockbnrn C.J. thought that the evidenceof professional witnesses is to be viewed with some degree of distrust,
■ for it is generally with some bias, but within proper limits it wasof very valuable assistance. The advantage is that the habits ofhandwriting as shown in minute points which escape commonobservation but are quite observable when pointed out and detectedand disclosed by science, skill, and experience.
In Wakeford v. Lincoln (Bishop),3 decided by the Privy Council,the handwriting expert, Mitchell, had said that it was not possible
1 (1907) 10 N. L. R. 355, at p. 359.
3 (1864) P. <Ss F. J. N. P. 22 English A Empire Digest 202.
3 (2921) 90 L. J. P. C. 174.
451 )
for anyone to say definitely that anybody had written a particularthing and that all he could do wa8 to point out the similarities anddraw conclusions from them. Lord Bir&enhead (Lord Chancellor)thought that he had given evidence with great candour and thatwas the manner in which expert evidence ought to be presented tothe Court, who have to make up their minds with such assistanceas can be furnished to them by those who have made a study ofthose matters, whether a particular writing is to be assigned to aparticular person. Questions depending upon handwriting are inmany cases doubtful and in the past have given and in the future willgive cause for great anxiety in Courts of Justice. If that were theonly piece of evidence, their Lordships, although without doubt intheir own minds as to the authenticity of the writings, would' notwillingly rest their judgment on a single fact as to which error mightbe possible. They thought that the only alternative to the genuine-ness of the writing was the supposition that it was a carefullyplanned forgery of the appellant’s name as an integral part of thealleged conspiracy, but that the hypothesis of. such a conspiracy wasutterly untenable.
In effect an expert in handwriting should not be asked to saydefinitely that a particular writing is to be assigned to a particularperson; his function is to point out similarities between twospecimens of handwriting, or differences, and leave the Court todraw its own conclusions.
In the present case Dep, who was at first suspected, had everyopportunity on his own evidence to study the accused’s handwritingand could well simulate his signature and writing. The suppositionthat he may have carefully planned the forgery of the accused’sname is not too far fetched, nor is such a hypothesis utterly unten-able where Dep stood to gain ,Bs. 2,000 and probably did drawEs. 1,000 by presenting the forged chit.
It has been held in. India that to base a conviction solely uponthe testimony of a handwriting expert is, as a general rule, veryunsafe,1 and the Calcutta High Court has held that a SessionsJudge is bound to call the attention of the jury to the fact that theevidence of an expert should be approached with considerable careand caution.3 Seasons have been given why expert evidence isgenerally not considered of high value. The expert is, thoughunwittingly, biased in favour of the side which calls him and has atendency to regard harmless facts as confirming preconceived notionsand evidence supporting or opposing given theories can be multipliedat will (Tracy Peerage Case 3). After the discussion in .the House ofCommons of what is known as “The Cadet Case,’’ Sir EdwardCarson (afterwards Lord Carson) hoped that the Tesult of the case
1 (1904) 2 AU. L. J. R. 444 & 7 C. L. Review 183.
* (1905) 1 Cal. L. J. 385.
*10C.& F. 191 <t< I. L. R. 11 Bom. 101.
1980
Jayewab-
DENE A.JV
King v.Peren
31/32-
1980
Jaybwab-dunk A.X
Perero
( 452 )
would be to do something to discredit for ever this clasfs of expertevidence.* The danger of implicit reliance on evidence of this kindwas illustrated in the Beck Case in 1904. Being based on opinion andtheory, such evidence should be very carefully weighed and principallyused in corroboration of other modes of proof as in the Privy Councilcas£, Wakeford v. Lincoln (supra).
It is asserted that in every person's manner of writing there is acertain distinct prevailing character, which as being the reflex of hisnervous organization is independent of his own will and unconsciouslyforces the writer to stamp the writing as his own, and this distinctivecharacter being once known can be afterwards applied as a standardtq try other specimens of writing, the genuineness of which isdisputed. Yet it is not impossible after sufficient study to simulateanother's writing, however marked the characteristics may be,and thus baffle even the best experts. In this respect. Anger printimpressions differ from handwriting, with which it has beencompared. The skin is traversed in all directions by creases andridges, which are ineradicable and do not change from childhoodto extreme old age. The persistence of the markings of thefinger tips has been proved beyond all question, and this universallyaccepted quality has been the basis of the present system of identifi-cation. The ridges appqar in certain fixed patterns, from whichan alphabet of signs or a system of notation has been arrived at.
A four-fold scheme of classification has been evolved, the varioustypes employed being styled arches, loops, whorls, and composites.There are seven sub-classes and all are perfectly distinguishable byan expert, who can describe each by its particular symbol withcode arranged, so that the whole ** print ” can be read as a distinctand separate expression. It has been found that out of hundreds*and thousands of instances no two persons have identical patterns.The identification by means of finger prints is now regarded as •practically infallible and is used with great success in Europe andIndia—London alone having a register containing over 200,000finger prints. Conclusions drawn by the comparison of disputedand authentic specimens of handwriting, whether by reason ofsimilitude or dissimilitude, are on the other hand deceptive and maybe dangerous. In the present case the disputed handwriting iscontained in one document only, the pay-out-chit (P). The figure" 3 " is said to resemble Dep's writing, and that * evidence affordsan additional difficulty in determining the authorship of the docu-ment. The initial “ S' ” and the capital “ P M in Perera stronglyresemble the “ S ” and “ P " in the accused's own signature andhave the same characteristics, but they could have been imitatedby any person who was practised to do so. The 'Other characteristicsmentioned by the expert are not so noticeable or convincing.
1 7 Ceylon Lai* Review 183.
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A person conspiring to imitate the accused’s handwriting couldeasily have discovered those characteristics and simulated them.There is no other evidence oi any kind connecting the accused andthe crime.
In a very recent case which is still unreported (205—I.'. C. Badulla23,757, S. C. M., June 17, 1930), Lyall Grant J. said—
“It is clear that the Magistrate regards all the evidence in thecase, with the exception of the expert’s evidence, withextreme suspicion and – he has in effect rejected it. Inthis I agree with him, but I think it is dangerous to convicton the evidence of the expert alone.’’
He also observed that one must not exclude the possibility offorgery, that is to say, of someone having imitated the name ofthe accused. He gave the accused the benefit of the. doubt andacquitted him.
’ I am not satisfied after an examination of the various signaturesand handwriting of the accused that the body of the pay-out chitor the signature on it is in the handwriting of the accused. Afterapplying my mind to this case with great care, I have arrived atthe conclusion that it would be dangerous to convict the accused.
I therefore set aside the conviction and acquit the accused.
1880
Jaybwab-
DENE A. J. .
Kmgv.
Ptrera
Set aside.
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