REGINA v. D. M. ARTHUR PERERA et al

079-NLR-NLR-V-57-REGINA-v.-D.-M.-ARTHUR-PERERA-et-al.pdf

Regina v. Arthur Perera313-
rV-g:'.[Ix the Court of Criminal Appeal]
Present Basnayake, A.C.J. (President), Pulle, J., andWeerasoorlya, J.REGINA v. D. 31. ARTHUR PERERA ct al.Appeals Eos. 105 axd 106, with Applications Nos.axd 165 of 1955
S. C. 3—31. C. Colombo, 14,281
Criminal Procedure Code—Section 233—Meaning of words “ all statements ”—Non-summary inquiry—Election of accused to give evidence—Is his evidence a“statement" ?■—Liability of accused to cross-examination—Admissibility,at the trial, of accused's deposition—Sections 134, 1ST (1), ICO, 101 (2), 1C4,233, 2S6 (7), 302 (I)—Evidence Ordinance, ss. 9, 17, 21, 157.
By section 233 of the Criminal Procedure Code, “ Atl statements of thoaccused recorded in tho course of the inquiry in the Magistrate’s Court shallbe put in and rend in evidence before the close of the cose for tho prosecutionHeld, that tho evidence giyen by an. accused person under section. 161 (2)of the Criminal Procedure Code in the course of a non-summary inquiry isnot a statement within the contemplation of the words “ all statements ” insection 233. Therefore, the prosecution is not bound to put in and read suchevidence before closing its case at the trial of the accused.
The Queen v. Sathasivam (1953) 54 X L. K. 541, overruled.
Held further, that, when tho Clerk of Assize is called to prove certain state-ments which were put to witnesses in cross-examination, the deposition modeby the accused under section 161 (2) of the Criminal Procedure Code is notadmissible under sections 9 and 21 of the Evidence Ordinance in ordor toprove the fact that a statement, which had been made by the accused before aMagistrate under section 1.34 of the Criminal Procedure Code and which theprosecution has already put in as a confession of tho accused, had beenretracted by the accused in liis evidence at the non-summary inquiry. It is,however, open to the accused to give evidence at the trial and rely oil thodeposition as corroborating his evidence under section 157 of tho EvidenceOrdinance. ■
Obiter : When an accused elects to give evidence on his own behalf at anou-summary inquiry, ho is liable to bo cross-examined under the provisionsof Chapter XII of tho Evidence Ordinance subject, however, to tho provisionsof section 51 thereof.
Joint trial—Principal and abettor—Confession by abettor—Separation of trials-—factors for consideration—Discretion of Court—Criminal Procedure Code,s. 1S4.
A confession mado by a co-accused and admitted in evidence at the trialdoes not necessarily vitiate the joint trial of several accused if sufficient warningis given to the Jury that tho confession is not evidence against the otheraccused.
Where sov'cral persons concerned in committing an offence are chargedtogether, the question whether a separate trial should bo ordered or not is nmatter entirely at,the discretion of the trial Judge and is governed by section1S4 of tho Criminal Procedure Code. – Once that discretion has been judiciallyexercised, the Court of Criminal Appeal will not interfere, except when it
14LVII
J. X. 1! 01200—1,002 (1/5G)
appears to it that a miscarriage of justice has resulted from the prisonersbeing tried together. In considering the question of separation of trials itwould bo wrong to look at the matter exclusively from tho point of view of theaccused. The interests of justico demand that tho Crown should not bounduly hampered in its presentation of tho caso.
Insjicction of scene of offence—Propriety of conducting experiments during suchinspection—Criminal Procedure Code, s. 23S.
In the course of tho trinl, tho Judge, Jurors and Counsel visited tho sccnoof tho offence. Tho 1st accused did not desire to join in tho visit, but hisCounsol was present on his behalf. During tho insjiection a polico officerstood at a window and, introducing his hand through tho grill, demonstratedthat a person of tho 1st accused’s height could have shot tho deceased fromoutsido tho window from which tho deceased was alleged to linvo been shot.When tho Court re-assembled after tho inspection, the police officer gave. evidenco under oath explaining tho demonstration.
Held, that tho demonstration of tho polico officer at tho scene of tho offcncowas not obnoxious to tho provisions of section 23s of tho Criminal ProcedureCodo.
Confession—Voluntarily made before Magistrate—Subsequent allegation by accusedthat the statement teas not voluntary—Admissibility—Criminal ProcedureCode, s. 134—Evidence Ordinance, ss. 21, SO.
At an inquiry held by the trinl Judge in tho absence of the Jur3- tho 2ndaccused, who had made a confessional statement boforo a Magistrate, gnvoevidence that ho was virtually in tlio custody of tho Polico at tho time thostatement was recorded under soction 134 of tho Criminal Procedure Codo.Tho Judge, however, found that tho statement was made by tho accusedvoluntarily.
Held, that tho evidence was ndmissiblo in evidenco against tho 2nd accused.
PPEAL.S, with applications for leave to appeal, against twoconvictions in a trial before the Supreme Court.
Colvin R. tie Silva, with J. C. Thitrairalnam (Assigned), for 1st accused-appellant.
Q. E. Chilly, with A. S. Vaniga-sooriyar, Dttya Rerera, and E. A. D.Atukorala, (Assigned), for 2nd accused-appellant.
H. A. Wijemanne, Acting Deputy Solicitor-General, with A. C. M.Ameer, Crown Counsel, for tho Attorney-General.
Cur. adc. vull.
January 23, 1956. Basxayake, A.C.J.—Tho first appellant has been convicted of the offence of murder and thesecond appellant of abetment of that offence.
Although one of the grounds of appeal was that the verdict of the Jurywas unreasonable learned Counsel who appeared for tho appellants didnot canvass the verdict on' that ground. It would appear from thotranscript of the proceedings that there was ample ovidenco which,if bolievod, proves conclusively tho guilt of tho appellants.
Of the 18 other grounds raised in tho notice of appeal of the firstappellant Counsel argued only tho fourth, sixth, and seventh. Theyare set out as follows ;—
“ (4) Tho failure to put in and read in evidence befoie tho close of thoeaso for tho prosecution tho statement made by tho 2ndaccused in tho Magistrate’s Court under section 161 of tjioCriminal Procedure Code rendered illogal tho ontiro trial andin any event gravely prejudiced the accused ;
– (6) It is respectfully submitted that there should have, been a separationof trials ; and
Portions of a statement alleged to have been made by tho 1staceusod to tho Police were illegally admitted into the case
Of thoso grounds learned Counsel very strongly urged tho first. Itarises in this way. At tho magisterial inquiry into tho case, tho secondappellant, on being addressed under section 160 of tho CriminalProcedureCode said “ I am not guilty ”, and on being immediately thereafteraddressod under section 161 of tho Code stated “ I wish to give ovidencohero ” ; but expressed no desire to call witnesses on his behalf. There-upon the Magistrate proceeded to take his evidence. Earlier thisappellant had made a statement which was recorded under section 131of the Code. It was produced in ovidenco as document P3S. In thatstatement this appellant described- in elaborate detail how the firstappellant whom he had known for twelve years planned and carried outthe murder of the deceased and confessed tho part he had played in thoentire transaction. In his evide2ice he alleged—
(t/-) that ho was assaulted by the Police and coerced into making thostatement he made to the Magistrate,
that the statement was false, and
that he knew nothing a bout the crime.
At the trial, after the statement of tho appellants under sections 160and 161 had been read, but before the close of the case for the Crown,the pleader for tho second appellant, in the absenco of the Jury, madean application—
“ that the evidence given by the second appellant before the Magistrateat the Non-summary proceeding be also led in ovidenco
He relied on the case of Queen v. Salkasiyani h Learned Counsel forthe Crown said that he did not propose to put in the evidence of thesecond appellant and cited in support of his contention the judgmentof this Court in King v. Punchimahatmaya-. The learned trial Judgeafter hearing argument ruled that the Crown was not bound to put inunder section 233 of the Code the evidence given by the second appellantbefore the Magistrate at the inquiry under Chapter XVI of the Code. .
* 44 N. L. R. 80. ■
1 54 A L. R. 541.
Counsel contended that the evidence given by the second appellantbefore the Magistrate was a statement within the contemplation of thewords “ all statements ” in section 233 of the Code. That section reads—“ All statements of the accused recorded in the course of the inquiry
in the Magistrate’s Court shall be put in and read in evidence before. the close of the case for the prosecution
Counsel’s contention was that the expression “statement” includesboth a statement on oath and a statement not on oath and evidencebeing a statement on oath is included in the expression “ all statementsBut while the word “ statement ” may in certain provisions of law towhich our attention uas drawn be "wide enough to include evidence,the question that arises for determination is -whether in the context inA'liich the expression “all statements ” occurs in section 233 of tlieCode it must be given that wide meaning or whether it. must he restrictedto all statements made by an accused in the course of the non-summaryinquiry in contradistinction to evidence given by him. That questionlias to be decided by reference to the provisions of the Code dealing withnon-summary inquiries as contained in Chap. XVI thereof.
It is common ground that prior to the amendment of the lair relatingto iion-summary inquiries by Ordinance Xo. 13 of I93S, the expression“ all statements ” in section 233 of the Code could only have meantstatements of an accused recorded'in the course of the non-summaryinquiry other than evidence, since there n-as no provision then for anaccused to give evidence on his own behalf at the inquiry. The amendingOrdinance was designed to provide for direct committal by a Magistratefor trial by a higher Court of cases which a Magistrate has no power totry summarily. While retaining the existing provision under which,at the close of the evidence for the prosecution, when a prima facie caseis made out on that evidence, tho Magistrate is required to explain thecharge to the accused and give him an opportunity of making an unswornstatement after cautioning him that whatever he says would-be recordedand put in evidence at bis trial, the legislature at the same time madeprovision enabling an accused to give evidence and for the recordingof such evidence should he elect to give such evidence. It is clear fromsection 1G1 (2) that the object of the new provision was to enable theaccused to place before the Court at that stage of the inquiry the evidencehe would be able to give himself so that in deciding whether the caseshould be committed the Magistrate may, subject to the provisionsof section 164 of the Code, take into account such evidence and also thearguments of his Counsel or pleader, and not to allow that evidence tobe read at the trial in terms of section 233 of the Code.
We also wish to state that an accused electing to give evidence on hisown behalf would be liable to cross-examination under the provisionsof Chapter XII of the Evidence Ordinance subject, however, to theprovisions of section 54 -thereof. Although the question arose ■ onlyincidentally, and it was not contended before us that the legal jiositionis otherwise, we have thought it fit to express our opinion on the point-as there appears to be uncertainty as to the practice hitherto adopted byMagistrates when an accused gives evidence at a non-summary inquiry.
Learned Counsel relied strongly on section 157 (1) in Chapter XVIof the Code which refers to the evidence of witnesses as "statementson oath ”, but it is not without significance that such statements aroreferred to in the subsequent provisions in the same chapter as either“ depositions ” or “ evidence ” while the expression " statements ” isused only to denote statements other than evidence.
Section 157 deals with the manner in which the evidence of witnessesother than an accused at a non-summary inquiry shall be taken, and thefact that in sub-section (1) thereof that evidence is referred to as state-ments on oath is not, in our opinion, a convincing reason for interpretingthe expression “ all statements ” in section 233 as including evidencegiven by an accused under section 161.
Learned Counsel for the second appellant, whose jjetition of appealcontained a ground of appeal in the same terms as the one under considera-tion, sought to reinforce the arguments addressed to us on tliis groundof appeal by reference to certain other provisions of the Code outsideChapter XVI where, in his submission, the expression “ statement ”includes evidence. In this connection he was able to refer us specificallyonly to section 2SG (l) and section 302 (1). Even assuming that theexpression '‘statement” in section 2SG (1) includes any evidence givenby an accomplice who, having accepted a tender of a pardon, is examinedas a witness under section 2S3 (3), it does not follow that the same inter-pretation must be given to the expression “ statements ” in section 233.The meaning of that expression must, as already stated, be gatheredfrom a consideration of the provisions of Chapter XVI of the Code. Inregard to section 302 (1), although Counsel went to the length of sayingthat evidence given by an accused at an inquiry under Chapter XVIof the Code must be recorded in the manner set out in that section,in our opinion this argument is quite untenable since it is clear that thesection deals (though not expressly) with statements other than evidence,and where an accused gives evidence at the inquiry the manner of record-ing it is governed by section 29S and not section 302 (1). Section 302 (I)is, thus, an instance where the expi'ession “ statement ” is used in theCode in a sense other than evidence.
Although the Crown relied on the case of The King v. Punchimahaltnaya(supra) both at the trial and before us the precise question underdiscussion did not arise in that case.
While the answer to the question which we are called upon to decideis not entirely free from difficulty, we have considered all the argumentswhich were addressed to us in support of the contrary view, and we areof the opinion that the expression “ all statements ” in section 233 ofthe Code means all statements of an accused, other than his evidencerecorded under section 161, for the recording of which express provisionis contained in Chapter XVI. This ground of appeal, therefore, fails.
The conclusion which we have reached seems to be in accordance withthe English practice, as stated in Phipson on Evidence 1, of putting inat the trial, as part of the case for the prosecution, the statements(commonly referred to as statutory statements) made by an accused at
1 Phipson on Evidence, 9th Edn, pp. 332—533.'
the preliminary inquiry whether sucli statements tell for him or againsthim. Although under the provisions of the Criminal Justice Act, 1925,relating to the procedure at the preliminary inquiry, some of which areclosely analogous to the provisions in Chapter XVI of the Code, an accusedis a competent witness for the defence, there appears to be no provisionwliich obliges the prosecution to put in evidence at the trial any evidence•given by the accused at the inquiry.
The next point learned Counsel for the first appellant argued was thatthe appellants should not have- been tried jointly. At the trial no appli-cation was made for a separation of trials, but the learned Judge appearsto have taken upon himself the question of considering the matter anddeciding that the case did not call for separation. Whether a separatetrial should be ordered or not is a matter entirely at the discretion of thetrial Judge and is governed by' section 1S4 of the Code. Once thatdiscretion has been judicially exercised, as it has been done in the instantcase, this Court will not interfere, except where it appears to it that amiscarriage of justice had resulted from the prisoners being tried together1.Where, as in this case, there has been no application to separate the trials,much less would it be possible to interfere -. In the instant case thejoint trial has not resulted in a miscarriage of justice. As the questionof separation of trials appears to need clarification, we wish to take thisopportunity of making a few observations thereon. Prima facie whenthe essence of the case is that the accused persons were engaged in acommon enterprise it is proper that they should be jointly indictedand tried, and generally speaking it would be as much in the interestsof the accused as in the interests of the prosecution that they should be.There is no rule of law that where it appears that the essential part ofone accused’s defence amounts to an attack upon another there shouldbe separate trials. The matter is entirely, as stated above, at the dis-cretion of the trial Judge, exercised with due regard to the interests ofthe prosecution and the interests of the accused. In considering thequestion of separation of trials it would be wrong to look at the matterexclusively from the point of view of the accused. The interests of justicedemand that the Croiii should not be unduly hampered in its presenta-tion of the case 3. If it should appear that there is a real danger thata separation of trials may so hamper the Crown in its presentation ofthe case as to lead to a miscarriage of justice by the acquittal of guiltypersons, that is a consideration which may outweigh the considerationof prejudice to the accused J.
In this case the confession of the second appellant, the abettor, wasadmitted in evidence subject to the warning given by the trial Judgeto the Jury that it was not evidence against the first appellant. Theonly ground on which it was contended that the trial Judge should haveordered a separation of trials was that this warning to the Jury', thoughadmittedly' given in adequate terms, would not have entirely removed
-1 Rex v. Gibbin, 13 Cr. App. R. 134.
– Daniel Youth v. The King, (104-5) .4. 1. R. Rricy Council 140.
3 Rex v. Kritzinger and another, 1952 (4) S. A. D. R. 651.
3 Rex v. Marian Grondkowski and Henryk Malinowski, (1946) 1 All K. 11. 559
the possibility of prejudice being caused to the first appellant. Thesame question was considered in the case of Daniel Youlh v. The King 1where the following observations were made by Lord Porter in deliveringfhe judgment of the Privy Council:—'
" It is true no doubt- that in all joint trials the mind of the jurymay be influenced by the reception of evidence which is only admissibleagainst one of the accused, but the practice in this country has alwaj-sbeen in a joint- trial to admit such evidence, leaving it to the presidingJudge to warn the Jury that the evidence must not be used to strengthenthe case against or lead to the conviction of a prisoner against whom itis not admissible.”•
This ground of appeal, therefore, fails.
The last ground of appeal set out earlier was not pressed by Counselfor the first appellant and need not be discussed here.
Counsel also submitted that, in view of the fact that this Court hadintimated in a recent judgment that it was proper for Counsel to drawthe attention of the Court to any matter which affects the validity ofthe conviction even though it has not been raised in the petition of appeal,he wished to bring to the notice of the Court certain irregularities which,he alleged, occurred at the visit to the scene by the Jury though theywere not included in the grounds of appeal. The visit was suggested bylearned Crown Counsel who addressing the Court said—
“ My Lord, I think it is desirable to lead the evidence of the Govern-ment Analyst after visiting the scene. The evidence of InspectorSyius could also be led after that ”,
The view of the scene was accordingly fixed for the next day at 9.30 a.in.
Crown Counsel made the following further application :—
“ Your Lordship might instruct Mr. Syms to mark out the positionin which the bed and the bedside table of the deceased were and alsoto put back these two flower boxes ”.
The Judge made order as follows :—
“ The flower boxes could be taken there by the Fiscal officers. Ifthere is anything else which you wish to suggest you could see me inChambers ”.
The Court then adjourned for the day. Thereafter in Chamberslearned Counsel defending the first appellant made an applicationto the Judge which is recorded thus :—.
“ Mr. Aelian Pereira on behalf of the 1st accused informs me thatthe 1st accused does not desire to join in the visit to the scene tomorrowmorning, apparently because he does not wish to be seen by the "crowd.Since his Counsel will be present on his behalf the 1st accused need notaccompany the Court. He can be kept in custody in Court till ourreturn ”.•'
1 Daniel Youth v. The King, (1945) A. I. R. Privy Council 140.
When the Judge, Jurors, Counsel, the Court staff, and the appellantsassembled at Hultsdorf the next day at 9.30 a.m. prior to the drive tothe scene the learned Judge addressed the Jurors in the presence of theClerk of Assize, in whose charge they were placed during the visit, andrequested them not to discuss, except with him, any matter concerningthe trial at the scene. What happened at the scene is thus recorded :—■
“ The room in which the deceased slept on the night of the incidentis pointed out by Inspector Syms who also indicates the position ofthe bed on which the deceased slept marked with chalk lines. Theposition of the bed-table on which was the reading lamp. The heightof the bed is shown marked on the wall and the height of the bed-tablejust below the switch. The height of the window sill on the inside isindicated. The Insx>ector is asked to stand outside the window throughwhich the "shot is alleged to have been fired with the flower boxesplaced in the position in which they were said to have been at the timeof the incident, and insert his hand through the grill over the flowerbox at the left hand corner of the window.
The lobby, and the lights in the lobb}r with the light switches are-shown, the bell switches and the bell itself, the back door for the useof the servants, the lock of the door of the deceased’s room are alsoshown. The Inspector is also asked to stand at the window outsideand the Jury see the position from outside the house. The new buildingof Proctor Thenuwara, the brother of the deceased, is shown. TheClerk of Assize is asked to stand on the short parapet wall in frontof the window of the deceased’s bed-room, looking into it. The gateat the entrance to the sandy lane is shown and the lamp post oppositethe gate. The gate of Ho. 10S at which the witness Gurusamy stoodis also indicated. The Court then returns by the route said to havebeen taken b}' the accused’s car on the return trip from the deceased’sbouse after the shooting ”.
When the Court re-assembled after the visit to the scene at 10.45 a.m.the same day, Mr. Sirimannc the Government Analyst was called as awitness. He said that lie visited the scene of the offence, for the firsttime on the day after the murder and several times thereafter, andcarried out certain experiments to test whether the deceased could havebeen shot from the place tlie prosecution alleged he was. His opinionwas that a man of o' 0" in height could have shot the deceased fromoutside the window from which the deceased was alleged to have beenshot. The first appellant is 5' 11" and Mr; Sirimannc is 5' 111".
Mr. Syms was called next. He said, that he entered the room of thedeceased only at 5 a.m. of the da}' on which the deceased had been shotand that although he had come earlier lie was unable to enter it as itwas locked. He made careful observations of the room and its contents.Then he examined the outside, observed the windows, and tlie two flowerboxes on the window sill at a height of 5' 2". He found the plantsdisturbed and some uprooted. Then he proceeded to describe tlic houseby reference to certain photographs produced in evidence. The witness
•then described how lie stood by the window and put his hand throughthe grill and he said he did it with a fair amount- of ease. He was thenasked—.
Q.Actually this morning when the Court visited the scene youintroduced your hand into that room over the flower box ?
A. Yes.
■ Q. You could do it without much effort- ? .
A. Yes.
Q. Standing on the groxmd ?
A. Yes.
Q. This morning you accompanied the court when they went tothe scene ?
A. Yes.
Q. On the order of His Lordship you pointed out certain spotsto the eourt 1
A. Yes.
Q. The position of the bed, the actual height and width of whichyou had actually marked on the wall at the bottom of thewindow ?
A. Yes.
Q. You showed the position of the bedside table on which the lampP6G and the book and purse were found ?
A. Yes.
Q. You also indicated the switch-board which contained all theswitches to the other parts of the house and the passageleading to Mrs. Thenuwara’s room ?'
A. Yes.
Q. And also the bolls and bell switches ?
A. Yes.
'To Court:
Q. You showed us the points where the bells ring ?
-4. Yes.-
-Exa mi nation co n t in ue d.
Q. You also showed the actual window through which it is allegedthe shot was fired ?
A. Yes.
.To Court :
Q. You stood at that window and introduced your hand whilethe Jury were inside the room and you remember standingthere again outside the door so that the jury could see youstanding ? .
A. Yes..
Examination continued.
Q. Could you introduce y-our hand without straining 1A. Yes.
q You also pointed out the spot where the car was and the spotwhere Gurusamy said he was at the time he heard the shot TA. Yes. ”
Cross-examined by pleader for the second appellant, Inspector Syms-gave the following evidence :—
« Q. You ivent and stood by the window-sill this morning and putyour hand through the grill work ?
A. Yes.
Q. You did that with ease being G ft. 2 inches in height 1A. Yes.
q You could only insert your hand up to about the wrist throughthe grill work ?
A. Ho. I could put my hand in as far as my arm extended.
Q. How much of your hand was protruding on the inner side ofthe bedroom ?
A. About 7 inches ”.
Counsel submitted that what was done at the scene was open to seriousobjection on the ground that there was no authority- in section 23S ofthe Code, for the taking of evidence or the carrying out of tests whenthe Jury views the scene of the offence. He further submitted that inthis instance the illegality was even more serious as the tests were con-ducted in the absence of the first appellant. Before we discuss thesubmissions of learned Counsel it will be helpful if the section of the Codeis first set out. That section reads—
“ 23S.(1) Whenever the Judge thinks that the Jury should view
the place in which the offence charged is alleged to have been committedor any other place in which any other transaction material to thetrial is alleged to have occurred the Judge shall make an order to thateffect; and the Jury shall be conducted in a body under the careof an officer of the Court to such place which shall be shown to themby a person appointed by the Judge.
(2) Such officer shall not except with the permission of the Judgesuffer any other person to speak to or hold any communication withany of the jury ; and unless the Court otherwise directs they shallwhen the view is finished be immediately conducted back into Court
The section does not require that the Judge, Counsel, and accusedshould accompany the Jury. It only provides for a view of the sceneby the Jury who will be conducted under the care of an officer of Court.As the officer of Court is not likely to know where the scene of the offence-would be it also provides for the appointment by the Judge of a person,who shall show the Jury the scene of the crime.
The question which remains for consideration is whether the act ofInspector Syms in standing at the window and introducing his handthrough the grill in the presence of the Judge, Jury, and Counsel at theinstance of the Judge is irregular and if so whether it is such an irregularityas to vitiate the conviction. Learned Counsel for the second appellantstrenuously argued that the irregularity was so serious that it, in thewords used in Ibrahim’s case *, “ tends to divert the due and orderlyadministration of the law into a new course, which may be drawn intoan evil precedent in future
Generally speaking the conducting of experiments at an inspectionof the scene of the offence is fraught with danger and should be avoidedunless it is necessary to do so in the interests of justice.
In the case of The King v. Sencviratne 2 the Privy Council declined tolay down as a general proposition that on a view by the Jury experimentsshould under no circumstances be conducted. In the case of Samara-nayake v. Wijesinghe 3, the whole question of the scope of a visit to thescene of offence and the carrying out of experiments has been discussed.What was done in the instant case was a demonstration which was notintended to be evidence in itself but was designed to assist the Jury tobetter understand the evidence, for it was only after the visit that theevidence of the Government Analyst and Inspector Syms was taken.Both of them gave evidence bearing on the theory of the prosecutionthat the deceased was shot by a man of 5' 9" or over in height from oxit-side the window shown to the Jury. Where, as in this case, a view ofthe scene has been followed by the evidence of the witness who gave thedemonstration and indicated the various matters the Jury were expectedto view there can be no valid objection to the procedure adopted eventhough the first appellant did not in person accompany the Judge orJury. Though it is not necessary in every case that the observationsmade at an inspection in loco should be put before the Court in the formof a statement from a witness who is called, or recalled, after the inspectionhas been made, it is usual in some jurisdictions when the hearing isresumed, after an inspection, to call, as in this case, witnesses to giveevidence in open Court under oath as to the demonstrations given,explanations made and as to the matters indicated by them at the inspec-tion. Learned Counsel for the appellants relied on the case of Satnn-ranayake v. Wijesinghe (supra) and The King v. Senevira/ne (supra).What was done in the instant case does not come within the range ofexperiments which both those decisions have pronounced as irregular.The extent and scope of an inspection in loco is a much discussed subject 4.But it is not necessary to elaborate the matter further for the purposeof this judgment.
Ibrahim v. King-Emperor, (1911) A. C. 599 at 615.
The King v. Scneviratne, 3S JY- L. R. 203.
3 Sa maranayake v. If ijesinghe, 52 Ar. L. R. 516.'
'1 Vol. LK VIIJ South African Law Journal, p. S—February, 1951; Yol. 213
Law Times Journal, p. 161—21st March, 1952.
.Scott v. Kumurkah Corporation, (1951) 91 Commonwealth Law Reports 300
at 309 et seq..'
Wig more on Evidence, 3rd Edit. 1910. Vol. IV. p. 263 (Sec. 1162), efc scq.
Learned Counsel for the second appellant also submitted that thestatement of the second appellant (P3S) recorded under section 134 ofthe Criminal Procedure was a confession and was improperly recordedby the Magistrate and admitted by the learned trial Judge. His sub-missions under this head ho classified as follows :—
“ («) It (the statement) was made while the 2nd accused was actuallyor constructively in Police custody and the Magistrate had notadequately ensured that the accused was free from duress orinflueneo by the Police and had not adequately questionedthe accused to ascertain whether any promise or inducementhad been offered to him for the making of the confession.
The circumstances undor which the Police brought tho 2nd accused
before the Magistrate and remained in or about- tho precinctsof the Court during tho recording of the confession and before•and after it and obtained immediately from the Magistratea copy of the confession are strongly indicative that circum-stances existed which vitiated the taking of the confession andwhich would serve also to exclude the confession by virtue ofthe provisions of section 24 of the Evidence Ordinance.
The circumstances under which a Proctor purporting to represent
tho 2nd accused was present in the Magistrate’s chambersduring the recording of the confession far from ensuring thattho 2nd accused had independent legal ad rice strongly suggestthat lie had no such advice and that his presence in no wayenured to the benefit of tiro 2nd accused or served the purposeof his interests but rather served only to give the Magistratean unjustified sense of confidence that the interests of the 2nd..accused were adequately safeguarded by legal advice. Upon
the admissions of this Proctor alone it is clear that lie neitheradvised tho 2nd accused nor gave himself an adequate oppor-tunity of acquainting himself with the matters relevant to theinterests of his client before he was present-at. the recording oftho confession.
It should have been obvious that a man who is allegedly confessingto murder could have had no interest to be served by the presenceof a Proctor at the recording of tho confession, even if theProctor had as this Proctor had not, been fully instructed asto what the 2nd accused was about to tell the Magistrate. Thepresence of the Proctor provided him with neither protectionnor independent advice nor could it have mitigated the fullrigour of the consequences of such a confession ”.
We are unable to agree with learned Counsel that the provisions ofsection 134 of the Criminal Procedure Code have not in this instancebeen satisfied. Section 134 reads—
“ 134.(1) Any Magistrate may record any statement made to
him at any time before the commencement of an inquiry or trial.
(2) Such statement shall be recorded and signed in the mannerprovided in section 302 and dated, and shall then be forwarded to theMagistrate’s Court by which the case is to be inquired into or tried.
(3) No Magistrate shall record any such statement being a con-fession unless upon questioning the person making it ho has reasonto believe that it-was made voluntarily ; and when he records anysuch statement he shall make a memorandum at the foot of suchrecord to the following effect :—
I believe that this statement was voluntarily made. It wastaken in my presence and hearing and was lead o' er by me to theperson making it and admitted by him to be correct, and it containsaccurately the whole of the statement made by him.
(Sgd.j A. B.
Magistrate of the Magistrate’sCourt of
According to the record the learned Magistrate appears to have ques-tioned the accused before he recorded the statement and satisfied himselfthat it was voluntary. These are the questions he asked hini—
“ Q. Are you making this statement due to any inducement ?
A. No. '
Q. Have you been threatened or assaulted to make a statement ?
A. No.
Q. Have you been offered any relief if you make this statement ?
A. No.
Q. Why arc you making this statement ?
A. Injustice has been done and I wish-to make this statement ’
Thereafter the Magistrate proceeded to record the statement of thesecond appellant which runs into six and a half manuscript and eightand a half typewritten pages.
Under section SO of the Evidence Ordinance whenever ail}' documentis produced before any Court purporting to be a record or memorandumof the evidence or of any part of the evidence given by a witness in ajudicial proceeding or before any officer authorised by law to take suchevidence, or to be a statement or confession by any prisoner or accusedperson taken in accordance with law and purporting to be signed by an}'Judge or Magistrate or by any such officer as aforesaid, the Court shallpresume—
that the document is genuine ;
that any statements, as to the circumstances under which it was
taken, purporting to be made by the persons signing it, aretrue ; and
(hi) that such evidence, statement, or confession was duly taken.
In the instant case the prosecution without relying on the presumptioncreated by the section led evidence in order to prove that the statementwas voluntary. At an inquiry held by the Judge in the absence of theJury the second appellant gave evidence and stated that the statementwas not voluntary and that ho was forced to make it by the Police underthreats and that the statement was false. It was urged on behalf of thesecond appellant that he was virtually in the custody of the Police atthe time he made the statement because Police officers were about the
placo and were constantly using the telephone in the passage which gaveaccess to the room in which the second appellant was detained till ho wascalled into the adjoining room in which the Magistrate was.
It would appear from the learned trial Judge’s order that all thesematters were considered by him when ho decided to admit the statementand we see no grounds for holding that he was wrong.
Counsel for the second appellant also complained that when the Clerkof Assize was called to prove certain statements which had been putto witnesses in cross-examination the trial Judge had refused to allow thesecond appellant’s deposition before the Magistrate to be produced inevidence. The application of the second appellant’s pleader and theruling of the trial Judge are recorded as follows :—
“ At this stage Mr. Weerakoon makes a formal application to havethe deposition of the second accused made a part of the defence caseand read. The Court disallows the application ”.
It was contended by Counsel for the second appellant that the dis-allowance of this application was wrong and that even if the depositionwas not admissible under section 233 of the Code it was admissible inorder to prove the fact that the statement P3S, which the prosecutionhad already put in as a confession of the second appellant, had beenretracted by him in his evidence at the non-summary inquiry. Whenasked to state under which section he sought to have the statementadmitted he referred us to section 9 of the Evidence Ordinance.
Evidence given by a witness in a previous judicial proceeding, eventhough it be that of an accused person, cannot be admitted in evidencein a subsequent proceeding except in accordance with tho provisionsof the Evidence Ordinance or the Criminal Procedure Code. LearnedCounsel for the second appellant did not seek to come under any provisionof the Criminal Procedure Code. A previous deposition may be provedif relevant under sections 32, 33, loo (c) and 157 of tho Evidence Ordi-nance. It was not argued before us, however, that any of these provisionspermitted the use of the second appellant’s evidence in the mannerin which it was sought to be put in at the trial. While the evidence inquestion would be an admission as defined in section 17 (1) of the EvidenceOrdinance, it docs not appear to be one which could have been provedon behalf of the second appellant under either of the paragraphs (a) or(b) of section 21 of that Ordinance. With regard to paragraph (c) ofsection 21, as stated above, section 0 was the only provision of theEvidence Ordinance under which Counsel urged that the evidcnco wasrelevant, otherwise than as an admission. That section declares asrelovant, inter alia, facts “ which rebut an inference suggested by afact in issue or relevant fact ”. In so far as tho evidence of the secondappellant at the inquiry may have been relevant- under this section torebut- any inference that the Jury may have drawn against him from thealleged confession of his which had been put in evidence by thoprosecution, its relevancy could have arisen only on the basis that thefacts deposed to in that evidence were true, and not otherwise. LearnedCounsel urged on us, however, that the evidence in question was relevant.
and admissible apart from the truth or falsity of the facts deposed to iuit. But we fail to see how the. Jury could possibly have been invitedto assess the weight to be placed on the alleged confession by merelytaking into account the bare fact that it had been subsequently retractedby the second appellant and without considering the truth or falsityof what was stated by him on that occasion. We arc unable, therefore,to agree with the proposition of learned Counsel and we aro of the opinion,that the application made on behalf of the second appellant was rightlydisallowed by the trial Judge.
It was plainly open to the second appellant to have given evidence atthe trial and relied on the deposition ns corroborating his evidence undersection 157 of the Evidence Ordinance. Having chosen not to do so hecould not be permitted to achieve a result in a manner not provided bythe Evidence Ordinance, namely, by substituting for evidence which hemight have given at the trial, the evidence which he gave before hiscommitment by the Magistrate.
If the second appellant had made only a statement from the dockwhen called upon for his defence at the trial and in that statement heretracted the confession, the terms of section 157 of the Evidence Ordi-nance would have precluded him from reading as part of the defencehis evidence at the inquiry. If, as it happened, the second appellantdid not even make an unsworn statement it would be surprising that heshould be in a position to mark his evidence before the Magistrate aspart of his defence at the trial.
For the above reasons the appeals are dismissed and the applicationsare refused.
Appeals dismissed.Applications refused.