013-NLR-NLR-V-37-THE-KING-v.-ATTYGALLE-et-al.pdf
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The King v. Attygalle.
1934
Present : Akbar J.
THE KING v. ATTYGALLE et a l.
6—P. C. Kandy, 44,762.
In the Matter of an Application under Section 355 of theCriminal Procedure Code.
Evidence—Charge of performing an illegal operation—Statement by accused toPolice Officer to the effect that he treated complainant for abortion—Exculpatory statement—No confession—Burden of proof—Direction toJury—Evidence Ordinance, ss. 106 and 145.
Where the accused who was charged with having performed an illegaloperation on a woman gave evidence on his behalf and was cross-examined by the Crown on a statement made by him to a Police Officerto the effect that he had treated her for threatened abortion and hadadvised her removal to hospital.
Held, that the statement was not a confession within the meaning ofsection 25 of the Evidence Ordinance, as it was exculpatory in its effect.
1 1 Supreme Court Cir. o4.
AKBAR J.—The King v. Attygalle.
61
Held, further, that the statement was admissible to test the credibilityof the accused under section 145 of the Evidence Ordinance.
Where the Judge directed the jury that if in opposition to the case basedon circumstantial evidence for the Crown the accused’s explanation,although the burden was on him under section 106 of the EvidenceOrdinance, had the effect of making them not only believe him but evencausing a doubt in their mind that any illegal operation was performed,the jury was bound to give the accused the benefit of the doubt.
Held, that there was no misdirection to the jury regarding the burdenof proof.
HIS was an application under section 355 (1) of the Criminal
-L Procedure Code to reserve two questions of law on behalf of thefirst and second accused, who were convicted -before the Supreme Court,the first accused with having performed an illegal operation on thecomplainant and the second accused with having aided and abetted thefirst accused.
Aelian Pereira (with him D. W. Fernando), for first and second accused.
Orosette Tambiah, C.C., as amicus curiae.
September 14, 1934. Akbar J.—
This is an application under section 355 (1) of the Criminal ProcedureCode on behalf of the first and second accused who were convicted andsentenced by me, after trial before me and a jury on August 28, 1934,that I should reserve and refer for the decision of a Court, consisting oftwo or more Judges, two questions of law which it is stated arose on thetrial, viz., (a) that I was wrong in allowing the Deputy Solicitor-General tocross-examine the first accused when he gave evidence in the witness-boxon a statement he had previously made to the Assistant Superintendent ofPolice, Mr. Gunaratne of the Criminal Investigation Department, Ceylon;(b) that I was wrong in directing the jury under section 106 of theEvidence Ordinance that the burden shifted to the accused withoutcalling their attention to- the fact that the prosecution must first proveits case.
Mr. Crown Counsel Crosette Tambiah, who was junior counsel to theDeputy Solicitor-General at the trial, appeared as amicus curiae at theargument on notice served on the Deputy Solicitor-General and himself.Dr. Attygalle, the first accused, at the close of the case for the prosecutiongave evidence on his own behalf, and, after he had been cross-examined forsome time by the Deputy Solicitor-General, the latter moved to cross-examine him on a statement which he had made to Mr. Gunaratne, theAssistant Superintendent of Police, Criminal Investigation Department,on April 26, 1934.
On the authority of the latest Full Bench decision in King v.Cooray et al.1 I allowed the Deputy Solicitor-General to cross-examinethe first accused on this statement, as it was a statement which wasentirely exculpatory. Mr. Pereira argued that I was wrong in doing so,because he stated that the statement was a confession made to thePolice, in the sense that certain passages in it suggested the inference-
T
37/8
i 28 N. L. R. 74.
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AKBAR J.—The King v. Attygalle.
of guilt. The Crown case was that the first accused had performed anillegal operation on Miss Maye and removed a foetus from her wombduring the hour or three-quarters of an hour during which Miss Mayewas put under chloroform by the first accused at a bungalow in Halloluwaroad on the morning of April 22, 1934. The Crown case depended oncircumstantial evidence entirely and Miss Maye’s evidence corroborated byother evidence relating to the incidents before, at, and after this one houror three-quarters of an hour.
Dr. Attygalle got into the witness-box and gave evidence denying thathe had performed an operation, but admitted that he had put her underchloroform without any suspicion that she was pregnant and thatimmediately- he discovered she was pregnant, he did nothing further.The statement* which the first accused made to the Assistant Superin-tendent of Police when read by itself, as it should be, is clearly exculpatory,and I cannot see how any one can deduce from it any inference of guilt onthe part of the first accused or in other words any inference thatDr. Attygalle performed this illegal operation. The statement is specificthat he suspected that she was pregnant even when he examined her onMarch 18, 1934, at the Mah,ara Resthouse and that he told the otheraccused he could do nothing to help her. On the second occasion—hewas wrong by one day as regards the dates—the patient was brought tohis surgery suffering from a haemorrhage. She was then taken to a■bungalow in Halloluwa road when he gave her a hot douche, also ahypodermic injection of morphia and he asked her to rest in bed andwarned her not to move about. He was paid Rs. 15. Next morning hewas taken again and found a slight improvement in her but thehaemorrhage had not ceased. He examined her more minutely, foundseveral large blood clots in the passage which he removed. He gave hera hot douche, also a morphia injection and advised Mr. Fonseka to removethe patient to hospital. He used the speculum and the forceps. He gavethe patient a bottle of medicine to be taken every four hours ….with a view to stopping the haemorrhage. He received Rs. 10 as fee.He then stated that he diagnosed the case as one of threatened abortion.He further added that one of the other two accused told him that thepatient had admitted that the stem of a castor-oil plant had been passedinto her womb and that she had also taken some patent medicines. I failto see how from this statement,, which must be considered by itself alone,for the purpose of the point of law, any one can draw the inference thatthe doctor performed an illegal operation on the second occasion. Inthis statement he does not even say that he put the patient underchloroform. He says definitely he diagnosed the case as one of threatenedabortion and advised her removal to hospital.
Mr. Pereira points to four passages in the statement, viz.— (a) that hesuspected her pregnancy at Mahara, (b) that when going to Halloluwa onthe second occasion he took some things including a speculum, forceps, and.dressings, (c) that he said he had used the speculum and the forceps, and
that the diagnosed the case as one of a threatened abortion—and arguesthat these passages suggest the inference that he had performed an illegal
•For copy of statement, see p. 66.
AKBAR J.—The King t>. Attygalie.
63
operation on the second occasion of his visit to Halloluwa. I cannotdraw any such inference when the tenor of the whole statement is that hetreated her for a threatened abortion and advised her removal to thehospital. The use of the forceps does not to my mind suggest that heremoved the foetus, for he said that he removed several large blood clotswhich he found in the passage. This statement which was made to thePolice was a statement made by a doctor, and when a doctor says hediagnosed the case as one of a threatened abortion, and that he gave hermedicines to stop the haemorrhage and advised her removal to thehospital, I fail to see how the statement can be construed or twisted tomean that he virtually admitted that he had removed the foetus fromMiss Maye.
The statement read as a whole amounts to nothing more than anexculpatory statement by the first accused so far as he was concerned.That being so, I was right in allowing the prosecuting counsel to cross-examine the doctor on this statement, which the doctor himself admittedto his own counsel he had made untruthfully with a view to exculpatehimself on the impulse of the moment. In my opinion it was not aConfession within the meaning of section 25 or section 26 of the EvidenceOrdinance as explained in the Full Bench decision above referred to.Further this statement was not proved as part of the case for theprosecution but was used under section 145 of the Evidence Ordinance totest the credibility of the evidence of the first accused given in the witness-box. In this connection I might mention in passing, although it is notnecessary for me in this judgment to give my specific opinion on the point,that under section 120 (6) of the Evidence Ordinance as amended by No.16 of 1925, a discretion seems to be vested in the Court as to the limits towhich the cross-examination of an accused person when he elects to giveevidence can be extended or curtailed so far as it relates to credit. InKing v. Cooray referred to above the case of King v. Kalu Banda' wasconsidered, and the following are extracts from the 28 N. L. R. case: —“ The law does not prohibit the reception in evidence of admissions toPolice Officers so long as they are in other respects admissible in evidence.What is prohibited is the admission in evidence against an accused personof confessions made to police officers. ”
Referring to Dal Sing v. King Emperor3 decided by the Privy Council,which was followed by the Supreme Court, Garvin S.P.J. said as followsin the 28 N. L. R. case:—“The statement (which was held to beadmissible by the Privy Council) though it was in conflict with the defenceset up and was used for the purpose of discrediting that defence, washeld to be in no sense a confession and admissible against the accusedwho made it to the police. It was a self-exculpatory statement, not aconfession, and it did not cease to be a confession because it was at conflictwith the defence later set up and was used for the purpose of discreditingthat defence. This decision is fatal to the submission that an admissionwhich is not a confession becomes obnoxious to section 25 if it is foundto be at conflict with a defence later set up. This submission, if it is:entertained, will lead to the result that an accused person may always-
1 15 N. L. R. 423.
(1917) 8fi L. J. 140.
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AKBAR J.—The King v. Attygalle.
exclude evidence of an admission made to a police officer by taking up aposition which will bring his defence into conflict with the admission. ”
It will be noticed that in the case which was tried before me thestatement was not even proved as part of the case for the prosecution,but was put in under section 145 of the Evidence Ordinance to discreditthe evidence given by the first accused. Holding as I do that thestatement of the first accused was not a confession, I see no ground forthis question being further reconsidered.
I now pass on to the second point argued by counsel for the accusedthat I was wrong in my direction to the jury regarding section 106of the Evidence Ordinance. Towards the end of my summing upMr. R. L. Pereira, K.C., objected to my referring to section 106 as hecontended that it only applied to civil cases. I disagreed and said thatit did apply to criminal cases as well. It is now admitted by Mr. AelianPereira that that section is applicable both to civil and criminal cases.Of this there can be no doubt, for illustration (b) to the very section refersto a criminal case. Further, section 105 which speaks of the burden ofproof being on the accused in certain cases refers exclusively to criminalcases. Moreover, there are many statutory offences in our Ordinances,where it is stated that in certain events the burden of proof is to be on theaccused. This does not mean of course that the presumption of innocencein favour of an accused which is always there in any criminal case hasbeen displaced or that the duty of the prosecution to prove its case isdone away with. The effect of such a rule in a criminal case has beenexplained by Bertram C.J. in the full Bench case of Attomey-GeneraL v.RawtherMr. Aelian Pereira, who unfortunately was not present duringmy summing up, is quite wrong when he said, if I understood him rightly,that I had directed the jury that under section 106, the burden shifted tothe accused without the Crown having to prove its case first. I made itquite clear to the jury repeatedly that in every criminal case the accusedwas presumed to be innocent and that the Crown must prove its case first,and that in this case it was the duty of the Crown to prove the only issuein the case, viz., that the first accused had performed an illegal abortionon Miss Maye on the morning of April 22, 1934, to the satisfaction of thejury. I further stated that the Crown relied on circumstantial evidenceto prove from certain facts beginning from the middle of January tillabout the end of April which I classified under motive, preparation,opportunity, conduct (before, during and after the time during whichMiss Maye was chloroformed) and facts supporting the Crown case, thatthe only natural and inevitable inference was that the first accused didperform the illegal operation. If the facts led to any other inference, viz.,that the abortion may have taken place at any time afterwards, eventhough the abortion was the result of something done by the first accusedto Miss Maye when she was under chloroform, the Crown case failed. Iexplained at great length that in a case of circumstantial evidence, thejury had first to decide what facts were proved to their satisfaction beyondany reasonable doubt. Having got those facts, they must proceed todraw the correct inference and that in this case the case for the Crownwas that the only inference that could be drawn was that an illegal
* 25 N. L. R. 385.
AKBAR J.—The King v. Attygalle.
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operation had been performed on the morning of April 22 by the firstaccused. If the chain of facts led to any other inference consistent withthe abortion having taken place after the period during which Miss Mayewas under chloroform the Crown case failed and the jury must acquit theaccused.
I illustrated my remarks by taking a case of circumstantial evidencewhere a husband is charged with stabbing his wife. If certain facts areproved, for example, a motive for the crime and facts showing that thehusband was seen running away from the room where his wife wasmurdered with a blood stained knife in his hand, the jury before theycan convict must first come to the conclusion on the proved facts thatthe only inference from such facts was that the husband was the murderer.If they could not come to such a conclusion the accused must be acquitted.If the accused husband gave evidence on his own behalf and the effect ofhis evidence was either to make the jury believe in the truth of his evidencein spite of their initial conviction on the circumstantial evidence that hewas the murderer or to cause a doubt in their mind that the husband’sversion may be the truth after all, they must give the benefit of the doubtto the accused and acquit him owing to the overriding presumption ofinnocence which was always there in a criminal case.
Unfortunately, there is only one stenographer attached to the AssizeCourt and it is impossible for one man to take verbatim the whole of aJudge’s summing up, especially if it lasts for some hours, without anyrelief. The stenographer’s recognized duty so far has been to take downthe evidence, which it is not difficult for one man to do, in view of the factthat most of the evidence is given in the form of question and answer andthey have to be interpreted. It is unfortunate that this state of affairsshould continue and I hope it will be remedied soon by the addition ofmore shorthand-writers. I asked the Court stenographer to take downas much of my summing up as he could. He was able to take down partsof my summing up and I attach a copy* of the relevant portions submittedto me by the stenographer, which bear out my own notes and my ownrecollection. I was glad to see from the Crown Counsel’s reply that hisrecollection too was also to the same effect. I referred to section 106 asin my opinion that is the law, and I am quite clear in my mind that 1referred to it because as a matter of fact Dr. Attygalle, the first accused,did give evidence, trying to prove that he did not perform any illegaloperation at all on Miss Maye but that he put her under chloroform andwhen he used the speculum and discovered her pregnant condition he didnothing further. I pointed out to the jury that if in opposition to the casebased on circumstantial evidence for the Crown, the doctor’s explanation,although the burden was on him, had the effect of making them not onlybelieve him but even causing a doubt in their mind that any illegaloperation was performed that morning, and that the abortion may havetaken place later, the jury was bound to give the benefit of any doubt tothe accused and acquit all the three accused. I also emphasised certainpoints in favour of the doctor’s explanation which must be reckoned bythe jury when weighing the Crown case against the defence, viz., the
* Xot reproduced.
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AKBAR J.—The King v. Attygalle.
absence of any volcellum marks on the cervix by Dr. Tillekeratne andthe apparent impossibility of a doctor allowing a woman to leave her bedtwo days after such an operation.
Mr. Aelian Pereira has submitted two extracts from my summing upby a newspaper reporter to support his argument. But even if they werecorrectly reported (the reporter himself says he cannot vouch for itsaccuracy as he could not hear me distinctly) the whole of my chargewhich went before and after the extracts, was not shown to me. As Ihave already-said, Mr. R. L. Pereira, at the end of my summing up objectedto my reference to section 106 as it only applied to civil cases. I differedand ruled that it did apply to this case. That although it appliedthe Crown had still to prove its case. Owing to this rule of law there werethree positions. If the jury thought that the burden had been dischargedby the accused in opposition to the Crown case the accused had to beacquitted. If the burden was not discharged, there were two positions.They could convict if they thought that his defence was absolutely false.(It will be noticed that the newspaper reporter has misreported me here.)If the jury could not say that the explanation of the first accused waseither true or false or in other words was left in doubt, the benefitof the doubt had to be given to all the accused and they were to beacquitted.
In my opinion the two points of law fail and I do not think I will bejustified in reserving them for consideration by a Bench of Judges.
* Copy of Statement of Dr. J. W. S. Attygalle of Kandy.
Dr. J. W. S. Attygalle lives at Wewelpitiya road, Kandy, present, states: —Some time between March 20 and 25, 1934, two gentlemen came in a car atabout 4 p.m. and asked me what I would charge to see a case about 50 milesaway. I told them that I would charge Rs. 150. Then one of them saidthat he would give me Rs. 100. I agreed. They gave me their names asPerera and Fonseka from Colombo. I asked -them to give me an advance.Mr. Fonseka then gave me cash Rs. 25. Perera and Fonseka came in a privatecar. When Fonseka paid me an advance of Rs. 25 I asked them to give mehalf an hour to get ready. They then said they will go out and come back inhalf an hour’s time. I then got into a rickshaw and went home. I got mysuit case ready, left some money with my people at home and went back tothe dispensary. I asked them what was the matter with the patient.Fonseka said it was a complicated case and they were consulting me to get myadvice. I returned to the dispensary about 4.30 p.m. and I found the twogentlemen seated in the car and waiting for me. I put my suit case into the car,went inside my dispensary, took hyperdermic injections syringe, stethoscope,a small case of knives, dressings, and several tabloids to make lotions and gotinto the car. Mr. Fonseka drove the car to Mahara Resthouse. We reachedMahara Resthouse about 7.30 p.m. They offered me some refreshments. Iasked them where the patient was. Fonseka said that the patient will becoming and so saying they left the Resthouse in the car asking me to wait.About two hours later they returned and entered my room. Fonseka saidthe patient is come and requested me to come and see her. I was taken into aroom where the patient was. She was lying in bed. I drew a chair close toher, sat down and questioned her. She answered all my questions. I askedher whether she was married and had any children. She said she was marriedbut had no children. She said her menses were very irregular and used tostop at various periods. I then asked her whether she would allow me to
AKBAR J.—The King v. Attygalle.
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make an internal examination. She consented. After that examination Iwashed my hands and took Fonseka out of the room. Perera was not in theroom when I examined her. I told Fonseka that my journey was a uselessone and that I was of no use as I could not do anything for her. He askedme why. I said I suspect pregnancy. I then went into the dining room andFonseka went into the patient’s room. The patient said her name was Maye.1 asked the boy to prepare my dinner. Perera who was in the verandah thencame in and asked me where Fonseka was. X said he went to the patient’sroom. On hearing that he also went in that direction. I then had my dinner.While I was having dinner both Fonseka and Perera came up to me andFonseka asked me “ are you sure you can’t help us? ” I said “ absolutely ”.They then sat down at the same table, ordered some refreshments and left inthe car with the patient. When they sat at the table Fonseka pulled out hispocket book and handed me cash Rs. 75. I then told him what about theresthouse charges. He inquired how much it will be. I inquired from theboy. He said it will be about Rs. 12.50. Fonseka then paid me cashRs. 12.50. After dinner I went to bed. Following morning I took trainfrom Ragama and returned to Kandy. I do not keep a fee-book.
Last Sunday, April 22, 1934, about 5 p.m. Fonseka and Perera saw me atmy dispensary. I asked them “ whats up now ”. They said they were outfor a week-end and travelling about with the patient. The patient was inthe car. Fonseka said the patient started a haemorrhage that morning andas they were close to Kandy they thought of coming to me. I asked them tobring the patient in—I put her on the couch. She had a napkin on. It wassoaked in blood. I said I could not do anything in the dispensary and thatshe must be taken somewhere where she can be dressed and attended to.Then one of them asked me to get into the car. I took the necessary things,viz., douche can, hyperdermic syringe, necessary injections, and solutions. Ialso took a bottle of lysol. Fonseka drove us to Halloluwa road, Fonsekatook us to a house in the garden. The house was one which had been rentedout by Nurse Weerakoon of the Matale Hospital. She was not in the houseat the time we got the patient into a bed. I then gave her a hot douche, also ahyperdermic injection of morphia and told her that she must rest herselfon bed and warned her not to move about. I waited a few minutes more.Fonseka paid me cash Rs. 15 and Perera drove me back. Next morningApril 23, 1934, Fonseka and Perera came and fetched me. I took the samethings including a speculum, some forceps and some dressings. When I gotthere I found that there was slight improvement but the haemorrhage had notceased. I practically did the same thing over again and was able to make amore minute examination. I found several large blood-clots on the passagewhich I removed, gave a hot douche, also morphia injection and advisedMr. Fonseka to remove the patient to hospital. I used the speculum and theforceps. On Sunday night I gave .Perera a bottle of medicine to be givento the patient every four hours. I gave her ergot, calcium salts mixed withsome carminatives with a view to stopping the haemorrhage. I received myfee of Rs. 10 in cash. I had a little breakfast with them and returned. Idid not see them after that. I diagnosed the case as one of threatenedabortion. At breakfast in conversation one of the two gentlemen said on myquestioning them that he was told by the patient that “ endaru stem ” waspassed by some one into the womb and also that she had taken some patentmedicines. The occupants of the Halloluwa house were a man, his wife anda servant boy.
wrote my name in the resthouse book at Mahara. I think the others alsowrote their names in the book.
April 26, 1934.
Application refused.