L. PIYADASA Appellant, and THE QUEEN, Respondent

095-NLR-NLR-V-72-L.-PIYADASA-Appellant-and-THE-QUEEN-Respondent.pdf


434
~Pvjadasa v. The Queen
[Court or Criminal Appeal]
1367 Present: T. S. Fernando, J. (President), Abeyesundere, J.,
and Alles, J.
PIYADASA, Appellant, and THE QUEEN, Respondent.Appeal No. 91 of I960, with Application No. 157
S. C. 37—M. C. Balapiliya, 47067
Evidence Ordinance—Section -T—Jioni much oj information received front accused manbe proved—"Fael discovered ”—Statement made by accused from the dock— ■Summing-up—Xon direction.
T. S. FERNANDO, J.—Piyadasn v. The Queen
43 5
(i) When * Jio Police Inspector wlio recorded a statement of the accused-appellant in the course of his inquiry tinder Chapter Nil of the CriminalProcedure Code was being examined ns a prosecution witness. Crown Counselsought to prove in evidence, through the witness, two sentences (barring thoworils " do.se to the spot ") «mt of that statement (P22), in terms of section 27of the Evidence Ordinance. The I wo sentences wore :—
** I liid the sword under some leaves close to the spot. I can point out thoplace to the police. ”
The trial Judge then directed that the word ’* sword ” should l-»c substitutedfor the word ‘‘ place and that all that should be elicited from th<* witness werethe words “ I can point out »ho sword to ihe police ".
Jlchl, that, inasmuch ns both sentences appearing in document P22 wereadmissible under seel ion 27 of the Evidence Ordinance, it was not possible tosay that the admission of the document, with the substituted word, could hovocaused any prejudice to the accused.
(ii) In regard to an exculpatory statement made by tlic accused from thedock, the trial Judge directed the Jury thus :—
“ If you take the view—this is important—ihaf his statement is true or atleast it is probably true, then the ease for the Crown must fail because it mustcause a reasonable doubt in j our mind. ”
Held, that the charge to the Jury in respect of the dock statement of thoaccused was unduly unfavourable to tho accused and constituted a non-directionon a necessary matter. It was capable of leaving in the minds of the jury thoimpression that even if tho appellant's statement- raised a reasonable doubtos to the probable truth of tho Crown’s case, that was not sufficient to enablehim to claim a verdict of acquittal.
jAlPPEAL against- a conviction at a trial before the Supreme Court.
Colvin B. de Silva. wit It Xihal Jaymvickrama, XJ.dc Z. Gunaicardenaand Miss A. P. Abeyralne, for the accused-appellant.
T.A. de S. Wijesttndere, Crown Counsel, for the Crown.
Cur. ado. vult.
January 27, 19G7. T. S. Fernando, J.—
At the conclusion of the argument upon this appeal wc quashed theconviction of the appellant on the charge of murder but, acting in termsof the proviso tosection f> (2) of the Court of Criminal Appeal Ordinance,ordered a new trial on the same charge.
Mr. de Silva, on behalf of the appellant-, raised three grounds of appealwhich may be set out as follows :—
There was an illegal reception of oral evidence of part of a statementmade by the appellant which had been recorded under section122 of the Criminal Procedure Code ;
T. S. FERNANDO, 3.—Piyadasa v. The Queen
436
That even if it was part of the document that was sought to be
admitted in terms of section 27 of the Evidence Ordinance,what was actually led in evidence was a part of the recordedstatement as revised in accordance with a direction of thetrial judge ; and that such revision was not legallypermissible ;
That certain directions to the jury relating to the manner in which
the appellant could claim an acquittal constituted a misdirectionin law.
The first two grounds above set out may conveniently be consideredtogether. When the Police Inspector who recorded a statement of theappellant in the course of his inquiry under Chajher XII of the CriminalProcedure Code was being examined as a witness called by the prosecution,Crown Counsel informed the judge, in the absence of the jury, that heproposed to prove in evidence, through the witness, two sentences outof that statement. These sentences both appear in document P22 andthey are reproduced below :—
“I hid the sword under some leaves close to the spot. I can point
out the place to the piolice.”
He said he did not purpose to elicit in evidence the last four words ofthe first of these two sentences, i.e. the words “close to the spot”. Afterhearing argument, the learned judge ruled that he would only allowpart of these two sentences to be elicited, and directed that all thatshould bo elicited were the words “ I can jjoint- out the sword to thepolice ”,
Now the words directed to bo so elicited were not the actual words'used by the appellant. He had said “ I can point out the place to thepolice”. The word “sword ” which was substituted for the word “place”was one to be found in the earlier sentence which, according to the judge’sdirection, was not to be admitted. The relevant part of the direction asappearing in the record of the trial was in the following terms ::—
‘•’Omit- the words from the statement "I hid the sword under
some leaves close to the spot”.”
• t
After the making of this ruling and the giving of this direction*the questioning of the Inspector and his answers took the followingform :—
. Q. “ What- is that portion of the statement which led you to discoverthe sword ? ”
A. “ I can point out the sword to the police.”
T. S. FERXAXDO, J.—Piyadasa v. The Queen
437
Q.“ You produce a certified copy of that marked P 22? ”
A. “ Yes
In view of the learned judge’s ruling and the submission of both counselthereto which must naturally be assumed in the circumstances, we mustalso assume that, iu spite of the text of P 22 as it appears ou record, allthat was placed in evidence were the words
“ I can point out the sword to the police.”
The first ground of ajjpeal was dependent on the criticism that whatwas placed before the jury was not part of the document forming therecord of the statement of the appellant but oral evidence as to its con-tents. The statement being one required by law to be reduced to writing,its contents could have been proved only by a production ofthe written document. As to this ground of appeal we are bound toobserve that the record shows on its facethat_P22(or that part ofit which was allowed) was actually produced in the case as evidence.Eo doubt, there was a substitution for one of the words ; but that substi- .tution is the subject of complaint in the second ground of appeal towhich we could now turn our attention. As to this, Mr. de Silva submittedthat what was placed before the jury was part of the appellant’s state-ment in a form that was not emplojred by the appellant himself. Thereis some technical merit in this submission, and a trial judge should becareful not to attempt to interpret, or to call upon the jury to interpret ,any part of a person’s recorded statement except by reference to suchother parts of that same statement as may have been admitted in evidence.Moreover, if what an accused person is proved to have stated is to beused against him, it is important to restrict that use to the words actuallyemployed by him and not to embrace other words alleged to be aninterpretation of his actual words. In the instant case, however, bothsentences appearing in document P 22 were, in our opinion, admissibleunder section 27 of the Evidence Ordinance, and Mr. de Silva concededthat they were so admissible. In these circumstances we do not find itpossible to say that the admission of the document (with the substitutedword) could have caused any prejudice to the appellant. The first twogrounds of appeal fail.
We note that Crown Counsel, on behalf of the prosecution, expresslyinformed the judge that he did not seek to lead in evidence the words” close to the spot ” appearing in P 22. This was a concession on the partof the prosecution, and our opinion that both sentences in P 22 wereadmissible under section 27 of the Evidence Ordinance should not betreated at the re-trial as indicating any view on our part that theprosecution is bound to seek to admit them. This concession indicated afair attitude on the part of the prosecutor, acting within his discretion,and we have no desire to fetter in any way that kind of exercise ofdiscretion.
— JT 122S2 (3/70)
433
T. S. FERNANDO, J.—Piyadasa v. The Queen
It would not hare been necessary to say anything more here in regard- to what took place at the trial in respect of the appellant’s statement tothe Inspector but for the form (reproduced below) of the question put byCrown Counsel.
Q.“ What is that portion of the statement which led you to discoverthe SArord ? ”
As we have ordered a retrial, I should like to refer on this occasion alsoto the observations of the Privy Council in the case of Kottaya u. Emperor(1947) A. I. K. (P. C.) at p. 70 in respect of section 27 of the EvidenceOrdinance :—
*“ The condition necessary to bring the section into operation is
that discovery of a fact in consequence of information received froma person accused of any offence hi the custody of a Police officer mustbe deposed to, and thereupon so much of the information as relatesdistinctly to the fact thereby discovered ma3r be proved. .The sectionseems to be based on the view that if a fact is actually discovered in-consequence of information given, some guarantee is afforded therebythat the information was true, and accordingly can be safely allowedto be given in evidence ; but clearlj' the extent of the informationadmissible must depend on the exact nature of the fact discoveredto which such information is required to relate.”v.
“In their Lordships’ view it is fallacious to treat the “ fact discovered”within the section as equivalent to the object produced ; the factdiscovered embraces the place from which the object is produced andthe knowledge of the accused as to this ; and the information givenmust relate distinctly to this fact. Information as to past user, orthe past history, of the object produced is not related to its discoveryin the setting in which it is discoverd. Information supplied b3r aperson in custody that “I will produce a knife concealed in the roof ofmy house ” does not lead to the discovery of a knife ; knives werediscovered many 3rears ago. It leads to the discover of the fact thata lcuife is concealed in the house of the informant to his knowledge,and if the knife is proved to have been used in the commission of theoffence, the fact discovered is very relevant. But if to the statementthe words be added * with which I stabbed A’ these words arcinadmissible since they do not relate to the discovery of the knifein the house of the informant.”
The third ground of appeal relates to a direction b3' the learned trialjudge as to the circumstances in which the appellant could have claimeda verdict of acquittal. The appellant did not give evidence by enteringthe witness box ; instead, ho made a statement from the dock in thecourse of which he related how lie surprised the deceased up a coconuttree belonging to the estate of which lie was the watcher at this time.
T. S. FERXAXDO, J.—Piyadasa v. The Queen439
that the deceased came down the tree, pulled out a knife and attemptedto stab him "whereupon he used a club he had with him to hit the deceased.The blows which proved fatal had been inflicted with a cutting weapon ;the appellant in the course of his dock statement said that these blowshad been struck by another man who, he claimed, had turned up inresponse to cries he raised. In respect of this statement, the trial judgedirected the jury thus :—
“ If you take the view—this is important—that his statementis true or at least it is probably true, then the case for theCrown must fail because it must oause a reasonable doubt in yourmind."
I may here observe that if the jury thought that the statement wa3true or probably true, then it must follow that the case for the Crownwas false or probably false, not merely that a reasonable doubt wasraised in regard to its truth. Moreover, in the form in which the directionwas given, we cannot rule out the likelihood of the jury falling into theerror of supposing that for a reasonable doubt to arise in regard tothe Crown case the statement of the appellant must at least be probablytrue, the more so in this case where the learned judge did not attemptto explain what constitutes a reasonable doubt except to say that it“ must be a real doubt as opposed to a doubt roused by imagination orfancy”.
What the learned judge went on to say immediately after thepassage reproduced above on!}- served to emphasize what he had alreadysaid :
” You will have to make up your mind whether you can accept itas a truthful statement or as a probably true statement. But if youhold that it is improbable or that it is impossible or that you disbelievehim, then, of course, you must reject that statement.”
While there was nothing in this part of his charge that was erroneousin law so far as it went, his direction to the jury did not go far enough.Even if the jury did not consider the appellant’s statement to be trueor probably true, j-et if the statement could have caused them toentertain a reasonable doubt as to the truth of the Crown case theappellant was entitled to claim a verdict of acquittal. There was anomission to give the jury a direction of this nature, a direction whichwe consider was necessary in the circumstances. Instead, towards theclose of his charge, the learned judge repeated himself in the followingwords :— **
** What is the opinion you form in regard to the statement of theaccused ? Do you think it is true or probably true ? If you think it istrue or probably true, then you must acquit him because it castsa reasonable doubt on the Crown’s case ”
440
■Charles Silva v. Manchanayake
The appellant’s complaint that the charge to the jury on this pointwas xinduly* unfavourable to him and constituted a non-direction on anecessary matter is in our opinion well-founded. It was capable of leavingin the minds of the jury the impression that even if the appellant’s•statement raised a reasonable doubt as to the probable truth of theCrown’s case that was not sufficient to enable him to claim a verdict ofacquittal. The ground of misdirection had to succeed and the appealhad therefore to be allowed.
/here was a further point arising out of a direction of the learnedjudge in rcsp>ect of the defence of person that arose from the appellant’sstatement. Complaint was made that the judge overlooked the existencein that statement of a reference to what the deceased did with a knifewhich, the appellant stated, the deceased had with him. Said the judge :“Now, what is the evidence to show that he was exercising the right ofprivate defence of his person ? We know that the deceased had that
knifeOne does not know what he did with that knife.” This
complaint too was well-founded ; but in view of the nature of the' orderwe have made on this appeal it is not necessary to examine furtherwhat effect this misdirection on a question of fact was likely to havecaused in relation to the verdict.
Case sent back for new trial.