031-SLLR-SLLR-1978-79-V2-Benwell-v.-Republic-of-Sri-Lanka.pdf
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Benwell v. Republic of Sri Lanka
COXJV.T OF APPEAL.
COLIN -THOME, J., BANASINGHE. J. AND ATUKOEALE, J.
C.a. application 23/79 and 633/79.
MAY 7, 8. 9, 1979.
Extradition Law, No, 8 of 1977, sections 6, 9, 10 and 14—Prhna faciecase required—Evidence Ordinance, sections 34, 62, 63 65 and 100—Whether computer evidence admissible—English law—Sale of GoodsOrd. {Cap, 48), Section 12 (I).
HeldCl) In proceedings under section 10 of the Extradition Law, No. 8 of1977, the Court in Sri Lanka is entitled to consider for the purposes ofsufficiency of evidence, only the evidence that is relevant and admissibleunder the law of Sri Lanka and the standard of proof required is nothingless than a prima facie case.
C2) Computer evidence is in a category of its own. It is neither originalevidence nor derivative evidence. Under the law of Sr Lanka, computerevidence is not admissible under section 34 of the Evidence Ordinancenor under any other section of the Evidence Ordinance.
Section 14(1) (a) of the Extradition Law, No. 8 of 1977. is onlyan enabling provision and is not intended to prevent the rejection ofevidence taken abroad contrary to the rules of evidence in Sri Lanka orInadmissible thereunder.
Cases referred toSchiraks v. Government of Israel and Others, {1962) 3 All E.R. 529;
{1962) 3 W.L.R, 1013; {1964) A.C. 556.
The Government of Australia v. Harrod, (1975) 2 All E.R. 1 ; (1975)
1 W.L.R. 745.
R. v. Governor, Brixton Prison, ex parte Sadri, (1962) 3 AH E.R.
'747 ; (1962) 1 W.L.R. 1304.
APPLICATIONS for a Writ of Habeas Corpus and in Revision from anOrder of the High Court, Colombo.
E, R. S. R. Coomaraswamy with S. Devasagayam, S. C. B. Walgampaya
and P. lllangakoon, for the petitioner.
K.M. M. B. Kulatunga, Additional Solicitor-General, with PriyanthaPerera, Deputy Solicitor-General and D. C. Jayasuriya, State Counsel,for the State.
Cur. adv. vult.
June 9, 1979.
COL1N-THOME, J.This is an application for a mandate in the nature of a writ ofhabeas corpus under section 11 of the Extradition Law, No. 8of 1977, read with section 141 of the Constitution of the Demo-cratic Socialist Republic of Sri Lanka in respect of the body ofP. G. J. Benwell, M.B.E., J. P. (corpus) and for extension of bailunder section 103 (4) of the Administration of Justice Law, No. 44of 1973.
The petitioner is the mother of the corpus, P. G. J. Benwell.
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On 27.11.1978 P. G. J. Benweil was arrested on a warrantissued by the High Court of Colombo, under the provisions ofsection 9 of the Extradition Law, No. 8 of 1977, on receipt of anauthority to proceed issued by His Excellency the President ofSri Lanka, acting under the powers vested in him by section 8of the Extradition Law read with Article 44 (2) of tile Constitu-tion of the Democratic Socialist Republic of Sri Lanka, inpursuance of a request made to him on behalf of the Governmentof Australia.
The request was made on behalf of the Government ofAustralia, a designated Commonwealth country, under section 8of the said law, to extradite P. G. J. Benweil from Sri Lanka toAustralia as he was accused of certain criminal offences. Therequest was made on the basis of 12 warrants containing theallegations that Benweil at Sydney, New South Wales, (a) onvarious dates between January 1977 and June 1978 embezzled11 valuable securities, namely, 11 cheques for various amountsreceived by him in the name of his employer, the United Domi-nions Corporation Ltd., of New South Wales, in his capacity asa clerk of the said Corporation, and (b) that Benweil on 3.3.1978,at Sydney, falsely pretended to S. T. Warmeant that a Toyotamotor car, number CUP—301, was the free and unencumberedproperty of his mother, Lady May Benweil, and by means ofthis false pretence obtained from Warmeant $2,800 with intentto defraud.
The said warrants had been issued in pursuance of 12 Informa-tions—General Purposes filed before the Stipendiary Magistrate,New South Wales, and, thereafter, the evidence of certainwitnesses was recorded and exhibits tendered before him inSeptember 1978, all in one day.
Together with the request to the President of Sri Lanka by theGovernment of Australia was furnished a summary of evidencein respect of 11 charges of embezzlement, offences under section157 of the New South Wales Crimes Act, 1900 as amended, andin respect of a 12th charge of obtaining property by false pre-tences, an offence under section 179 of the said Act. Exhibits1, 3, 4, 7, 9, 11,13,15, 17 to 77, 79 and 80 to 109 (referred to hereinas El, E3, etc.) were also forwarded together with the deposi-tions of witnesses.
After the arrest of Benweil, he was released on bail by orderof the High Court and thereafter the High Court held an inquiryin terms of section 10(4) of the Extradition Law. At the close of,the inquiry the learned High Court Judge ordered the committal
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of Benwell to the custody of the Fiscal, Western Province, undersection 10 (4) of the Extradition Law to await his extradition inrespect of counts 1 to 9 and 12 and proceeded to comply withsection 11 (1) of the said law.
At the inquiry in Sydney, G. A. B. Olivier was the mainwitness for the prosecution in connection with tha 11 charges ofembezzlement. He was a senior inspector of the United Domi-nions Corporation Ltd. (hereinafter referred to as the Corpora-tion) which was a listed public company and also registered asa finance company under the Money Lenders’ Act of New SouthWales. Olivier's duties were Branch and Departmental inspec-tions. He had been employed by the Corporation for approxima-tely 9 years and claimed that he h id a thorough knowledge of itsaccounting practices and procedures. He knew Benwell who wasan employee of the Corporation from about 20th November, 1972,until he resigned on the 9th of June, 1978. Benwell held theposition of Securities Officer of the Head Office Lending Depart-ment. His responsibilities included the custody of securitydocuments, settlement and discharges of real estate transactions.He was familiar with Ben well’s signature and handwriting.
Benwell had three separate accounts with the Corporation.The first was a real estate mortgage tender relating to a propertyat 14, Frederick Street, ‘ MIRANDA ’; the second was a realestate mortgage account in relation to a property at 13, Burraa-neer Avenue, ; CRONULLA ’. The third was a hire-purchaseaccount with the Corporation in relation to a Toyota CrownSedan motor vehicle registered No. CUP-301. Olivier producedthe ledger card relating to the ‘MIRANDA’ mortgage accountmarked E82, and the ledger card relating to the ‘CRONULLA ’account marked E 83. He produced the hire-purchase agreementrelating to the motor vehicle E 84 and the ledger card relating tothe hire-purchase agreement marked E85. In the course ofbusiness the Corporation employees were permitted to invest.money at certain rates of interest with the Corporation andBenwell invested such noneys with the Corporation.
Olivier was shown 3 computer sheets which purported to setout the investments and amounts deposited with the Corporationby Benwell. He had marked in pencil the numbers 1 to 9 againstsome of the deposits. The three computer sheets were markedE86.
Olivier stated in regard to the first charge that the Corporationadvanced $ 18,000 to Mrs. K. Joan Winters on Accounts No. RLT4902 3/10. This advance was secured by a registered mortgageover a property at 171, Arundle Street. The memorandum of
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mortgage was marked E87. The property subject to the mort-gage was subsequently sold on 14.1.1977 and on that day theCorporation received a New South Wales Bank Cheque for$ 18,355.06 drawn in favour of the Corporation (E 88). Thisrepresented the full proceeds of the payout figure dischargingMrs. Winter’s debt to the Corporation. Olivier stated that thischeque was not credited either to the Corporation or toMrs. Winter’s account with the Corporation. It was credited tothe account of Benwell with the Registry Department of theCorporation. In other words, it was credited to Benwell’s privateaccount.
Olivier was then shown au application form for unsecured•deposits relating to Benwell’s depositing of a total sum of $ 18,400with the Corporation. That w as made up of the cheque E 88 plusanother $ 44.04 with a separate cheque. On this form E 89 Olivieridentified Benwell’s signature at the bottom. He produced thedischarge of the mortgage between Mrs. Winter and the Corpo-ration marked E90. Benwell had signed the document as awitness.
With regard to charge 2, Olivier stated that the Corporation.advanced $ 187,000 to Jayer Pty. Limited secured by a registeredmortgage of property at Bayswater Road. Unit 2 of these premi-ses was sold on 17.1.1977 and on that day the Corporation receiveda Commonwealth Bank cheque for $ 6,300 drawn in favour of the•Corporation, representing the full payout figure required todischarge the obligations of the mortgagor. The cheque wasmarked E 47. On 28.1.1977 Benwell deposited that Bank chequeto the credit of his own account with the Corporation. Oliviergave this evidence after referring to the 3 computer sheets ER«against the pencil entry ‘2’. He added that Benwell made a«application for unsecured deposits E91 which related to tin*-deposit of the cheque E47 to his own private account. Benwell hadalso signed as a witness the discharge of the mortgage for $ 6,36Amarked E 92.
Regarding charge 3, the Corporation advanced $8,000 to F.Rubio. The loan was secured by a registered mortgage over aproperty at Liverpool Road. This property was subsequently soldon 4.3.1977 and on that day the Corporation received a C.B.C.Bank cheque for a sum of $7371.82 being the full proceeds ofthe payout figure required to discharge Rubio’s debt. The chequewas marked E 49. The discharge of the mortgage which Benwellhad signed as a witness was marked E 50 and the memorandumof mortgage E 48. The proceeds of the cheque E 49 were creditedin Benwell’s private account with the Corporation. Olivier bad.
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marked that entry in pencil in E 86 with the figure ‘ 3 An appli-cation for unsecured deposits signed by Benwell marked E93,according to Olivier, was used for the deposit of the cheque E 49to Benwell’s private account.
Regarding charge 4, Olivier stated that the Corporationadvanced $ 10,100 to Peter and Marie Zilimer. Those funds weresecured by a registered mortgage over a property at HighwayAvenue. The mortgage was marked E 94. On 6.12.1977 theCorporation received A. N. Z. Bank cheque for $ 8,189.50 drawnin favour of the Corporation being the full payout figure dis?-charging the obligations of the Zillmers to the Corporation. Thecheque was marked E 95. The application for unsecured depositsE 96 was used by Benwell to deposit E 95 into his private account.Olivier had marked the entry relating to this transaction in thecomputer sheets; E 86 with the figure ‘ 4
Regarding charge 5, the Corporation advanced $20,409 toRobert and Colin Smith. Those funds were secured by registeredmortgage over property at Queen Victoria Street. This propertywas sold on 22.12.1977 on which day the Corporation received aCommonwealth Savings Bank cheque for $ 18,985.47 drawn infavour of the Corporation (E 99). This figure represented thefull payout figure and discharge of the obligations of the Smithsto the Corporation. The mortgage document was marked 2 97and the discharge certificate which bore the signature of Benwellwas marked E 98. The proceeds of the cheque E 99 were creditedto the private account of Benwell. Benwell had signed an applica-tion for unsecured deposits E100 relating to the deposit of theproceeds of the cheque E99 into his private account. This wasmarked in pencil ‘ 5 ’ in E 86.
Regarding charge 6, the Corporation advanced $ 12,800 to Frankand Collette Wilson and those funds were secured by a regis-tered mortgage (E 62) over property at Percy Street. This mort-gage was subsequently discharged on 12.1.1978. The total payoutfigure on the mortgage was $ 9731.23. The cheque E 63 for $ 2,000was part of the total payment for the discharge cf the mortgageand the proceeds of this cheque were credited to the privateaccount of Benwell. Benwell had signed an application forunsecured deposits to deposit the proceeds of the cheque E63into his private account.
Regarding charge 7, Norman and Merle Kuskey were advanced$ 8,800 by the Corporation. These funds were secured by a mort-gage of property at Phipps Avenue. This mortgage was subse-quently discharged on 5.2.1978. The proceeds of cheque E 44 for
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$4,287.94 drawn in favour of the Corporation representing thefull payout figure in discharge of the obligations of the Kuskeysto the Corporation were credited to the private account of Ben-well. Benwell had also signed an application for unsecureddeposits to deposit the proceeds of E 44 to his own account.Referring to the computer sheets E 80 Olivier stated that theamount against the entry in pencil marked 4 7 ’ indicated thatthese monies were deposited to Benwell’s private account.
Regarding charge 8. the Corporation advanced. $8,300 to M.Rashid, the funds being secured by a registered mortgage over aproperty at Flinders Avenue. This mortgage was subsequentlydischarged on 17.2.1978. Benwell had signed the discharge certifi-cate E 53. On 27.2.1978 the Corporation received a Bank chequefor $ 7,248.05 drawn in favour of the Corporation being the fullproceeds required to discharge Rashid's obligation to the Corpo-ration. The proceeds of the cheque E51 were credited to theprivate account of Benwell. Benwell signed an application forunsecured deposits E105 to credit the proceeds of the cheque E 51to his private account.
Regarding charge 9, the Corporation advanced $30,000 to P.and I. Kalpaxis. These funds been secured by a registered mort-gage of property at West Parade. The mortgage was dischargedon 26.5.1978 and the Corporation received a Commonwealth Bankcheque for $23,298 drawn in favour of the Corporation. Thisrepresented the full proceeds of the payout figure required todischarge the mortgage. The cheque for this amount was markedE 54 and on 29.5.1978 the proceeds of this cheque were depositedto the credit of Benwell’s private account with the Corporation.Benwell signed an application for unsecured deposits E106 tocredit the proceeds of E 54 to his own account.
Regarding charges 10 and 11 the Corporation advanced$ 685,000 to K. and Y. Bechara. These funds were secured by aregistered mortgage over properties at Hampdon Road andChandos Street. Lot 6 was subsequently sold on 17.6.1978 and onthat day the Corporation received a Commonwealth Bank chequefor S 33,618.17 in favour of the Corporation. That figure was thefull proceeds of the payout required to discharge the obligationsof the Becharas to the Corporation in respect of lot 6. The chequewas marked E 58. On 9.8.1978 Benwell directed proceeds of thatcheque together with other monies towards the payment of theoutstanding balances on his two mortgage accounts referred toearlier. Olivier stated after referring to the ledger sheets E82and E 83 that a part of that money has fully discharged Benwell’sobligations to the Corporation in respect of the property Miranda,
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He added that the balance together with other money dischar gedBenwell’s obligations to the Corporation in respect of his propertyat Cronulla. This took place on the day of his resignation.
The ledger sheet was tendered and marked E 107. Lot 1 of theFive Dock properties relating to the Becharas was sold on
On that day the Corporation received six cheques total-ling $33,838.27, all the cheques being drawn in favour of theCorporation, representing the total payout figure for the Becharasobligations to the Corporation in respect of lot 1. One of thosecheques was an A.N.Z. Bank cheque for $ 4,900 marked E 61. On
Benwell directed the proceeds of that cheque togetherwith other monies towards the outstanding balances on his twomortgage accounts with the Corporation. E 108 was the dischargedocument.
Regarding charge 12, Olivier stated that on 3.8.1977 Benwellentered into a hire-purchase agreement with the Corporationrelating to the Toyota car CUP—301. On 3.3.1978 Benwell soldthe car to Mr. Warmeant. He did not have the authority of theCorporation to dispose of the vehicle nor did he inform theCorporation of his intending sale. He had m t discharged hisobligations under the hire-purchase agreement prior to his dis-posal of the car. The nett balance outstanding *n relation to thecar was $ 2,342 after allowing for the statutory rebate.
With regard to the first 11 charges, where Benv'ell had creditedhis own private accounts with monies received by him for andon behalf of the Corporation, he did not have any authority todisposje cf those monies in the manner in which he did. He wasrequired to hand those cheques to the cashier together witha notation as to what account they should be credited, and ineach case it would have been the account of the mortgagor forthat particular transaction. This was not done in the 11 instancesreferred to.
In relation to Benwell’s private investment account as at
the date of his resignation, his balance was nil. The lastfunds were taken out on 7 6.1978 and that was between $ 2,000 and$3,000 plus a s,mall amount of interest. Olivier stated that hehad made a list of the withdrawals and he produced a list ofinvestment account, relating to Benwell showing the depositsand withdrawals and cheque numbers relating to those accounts.This was marked E 109.
The witness S. T. Warmeant stated that on 3.3.1978 on seeingan advertisement for the sale of the Toyota car CUP—301 in theSydney Morning Herald he made a telephone call to Benwell.Benwell told him: “ I am selling it for my mother. ” He went
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over to Benwell’s address at Unit 64, 22 Waruda Street, Kirribilli.Benwell asked for $2,800 for the car but he offered $2,700 andBenwell agreed. He paid Benwell this amount and obtained areceipt. Benwell then handed over to him the registration papersand then he observed that the car was in Benwell’s name. Benwelltold him : “ Yes, I bought it for my mother.”
At the time he pu rchased the vehicle he believed it to be theproperty of BenweH’s mother and free and unencumbered ofany debt. He would not have parted with the money if he hadbelieved or known otherwise. Subsequently he had to pay anadditional $2,200 to the Corporation.
The learned High Court Judge with regard to charges 10 and11 held that there was nothing to show that the cheques hadbeen paid into Benwtll’s account and therefore the evidencerelating to charges 10 and 11 was insufficient to warrantBenwell’s trial under ihosa charges. We are in agreement withthis finding.
The grounds of the present application are that: —
The learned High Court Judge erred in his finding that
he was satisfied that the evidence contained in thedepositions and exhibits furnished in terms of section8(2) of the Extradition Law would be sufficient towarrant the trial of the corpus for the offences setout in charges i to 9 and 12 if they had beencommitted within the jurisdiction of the High Court,and in holding that the corpus should therefore becommitted to custody to await his extradition in termsof section 10 (4) of the said Law;
The said evidence or portions of the said evidence
admissible according to the rules of evidence in SriLanka are insufficient to warrant such trial and inthe absence of prima facie proof of the guilt of thecorpus given before the High Court according to theSri Lanka rules of evidence, the learned Judge, whocould act only upon the evidence before him, wasnot entitled to commit the corpus to custody, if hehad properly directed himself on the law:
When the said evidence is tested according to the rules
of evidence applicable in Sri Lanka, as it ought to betested, and all inadmissible evidence such as hearsayevidence is excluded, it will be found that;
(i) there was no admissible evidence before the HighCourt to hold that there was a prima facie casein respect of any of the charges 1 to 9 and 12
against the corpus;
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there was no reasonable evidence of the offencecontained in the said charges for the HighCourt to have acted upon the basis that therewas a case against the corpus which lie had tomeet;
there was no evidence before the learned HighCourt Judge upon which he could exercise hisdiscretion whether he would commit or not;
<iv) the admissible evidence was too slight to consti-tute a prima facie case sufficient to warrant acommittal for trial if the charges had originallybeen brought in the Courts of Sri Lanka and thematter was decided according to the laws of SriLanka;
if the test laid down in English law and referred toin the order is applied, that is, if the evidenceadduced stood alone at the trial, would areasonable jury, properly directed, accept it andfind a verdict of guilt, then the application forextradition ought to be refused.
In the absence of due authentication under section 14 of
the Extradition Law of the documents furnished to theHigh Court in terms of seciton 8, the High Court oughtnot to have ordered a committal of the corpus and suchdocuments ought not to have been read.
In principle the Courts of Sri Lanka will and must
protect the rights of the individual by insisting uponstrict compliance with the conditions precedent tosurrender prescribed by the Statute Law of Sri Lankabefore they take the view that the alleged offendershould be surrendered, and nothing can or will beinferred in favour of the application for extradition.
The High Court erred in law in holding that the evidence
tendered and admissible amounted to offences ofembezzlement or criminal breach of trust under section391 of the Penal Code ; while at the same time conced-ing that if money had first gone into the Corporation’saccount and the corpus had thereafter by some devicedrawn it out the offence would not be embezzlement.
Charge 12 against the corpus and the evidence relating
thereto did not disclose any offence under the Law ofSri Lanka but only a civil liability, if at all, and the
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corpus, therefore cannot be extradited for the saidoffence in terms of section 6(1) (b) and (c) and sec-tion 10 (4) (a) of the said Law, and the reasons givenby the High Court for holding to the contrary arebased on misdirections of law and fact.
In any event, the said charge 12, read with the evidence
tendered in support thereof, disclosed, if at all, anoffence of a trivial nature, within the meaning of sec-tion 11(3) (a) of the said law.
The High Court erred in law in holding that E82, E83,
E85, E86 and E107 were admissible under section 34and that E109 was admissible under section 65(7) ofthe Evidence Ordinance.
■;(10) The corpus ought not to be extradited or committed toor kept in custody for the purposes of such extraditionand ought to be discharged from custody in terms ofsection 11 (3) (c) of the said Law inasmuch as theaccusation against him by the officers of his formeremployer the United Dominions Corporation Ltd., ofNew South Wales, had not been made in good faith inthe interests of justice, and therefore having regard toall the circumstances it would be unjust or oppressiveto extradite the corpus.
The relevant parts of section 6(1) of the Extradition Law, No. 8of 1977, reads :
“ For the purposes of this Law, any offence of which aperson is accusedin any designated Common-wealth country shall be an extraditable
offence, if—
in the case of an offence against the law of a designated
Commonwealth country, it is an offence which, how-ever described in that law, falls within any descrip-tion set out in the Schedule hereto, and is punishableunder that law with imprisonment for a term of notless than 12 months ; and
in any case, the act or omission constituting the offence,
or the equivalent act or omission, would constitute anyoffence against the law of Sri Lanka if it took placewithin Sri Lanka, or, outside Sri Lanka.
Section 6, therefore, recognises the doctrine of dual criminality.
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Under section 10(4) of the Extradition Law "where an autho-rity to proceed has been issued in respect of a person arrestedand the court of committal is satisfied, after hearing any evidencetendered in support of the request for the extradition of thatperson or on behalf of that person, that the offence to which theauthority relates is an extraditable offence, and is furthersatisfied—
where the person is accused of the offence, that theevidence would be sufficient to warrant his trial forthat offence if it had been committed within the juris-diction of the Court;
the Court shall, unless his committal is prohibited by any otherprovisions of this Law, commit him to custody to await his extra-dition thereunder, but if the Court is not so satisfied, or if thecommittal of that person is so prohibited, the court shalldischarge him from custody. ”
Section 10(4) has fco be read together with section 6. The Courtof committal must first be satisfied that the alleged offence is anextraditable offence. Section 10 (4) (a) required that the evidencemust be sufficient to warrant a person’s trial for that offence, ifit had been committed within the jurisdiction of the Court inSri Lanka. This is also clear from a reading of section 6(1) (c).
In other words, the Court in Sri Lanka is entitled to consider,,for the purposes of sufficiency of evidence, only the evidence thatis relevant and admissible under the law of Sri Lanka. Section14(1) of the said Law reads :
“ In any proceedings under this Law including proceedingson an application for a mandate in the nature of a writ ofHabeas Corpus in respect of a person in custody thereunder—
(a) a document, duly authenticated, which purports to setout evidence given on oath in a designated Common-wealth country shall be admissible
as evidence of the matter stated therein ;
(E>) a document, duly authenticated, which purports to havebeen received in evidence, or to be a copy of a docu-ment so received, in any proceedings in any suchcountry or State shall be admissible in evidence. ”
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Under section 14(2) :
A document shall be deemed to be duly authenticated forthe purposes of this section—
(«) in the case of a document purporting to set out evidencegiven as aforesaid, if the document purports to becertified by a Judge or other officer in or of the countryor State in question to be the original document con-taining or regarding that evidence or a true copy ofsuch document;
(6) in the case of a document which purports to have beenreceived in evidence as aforesaid or to be a copy of adocument so received, if the document purports to becertified as aforesaid to have been, or to be a true copyof a document which has been, so received ;
and in any such case the document is authenticated either by anoath of a witness, or by official seal of a Minister, of the designatedCommonwealth country in question. ”
Section 14(1) (a) of the said Law is only an enabling provisionand is not intended to prevent the rejection of evidence takenabroad contrary to the rules of evidence in Sri Lanka or inad-missible thereunder.
In Schtraks v. Government of Israel and Others (1) (Per LordReid) the House of Lords held that the proper test to apply indetermining whether the material before the magistrates hadbeen adequate to justify a committal under the Extradition Act,1870, was whether, if that evidence stood alone at the trial, areasonable jury properly directed would accept it and find averdict of guilty.
In The Government of Australia v. Harrod (2), it was heldthat under section 7 (5) of the Fugitive Offenders Act, 1967,(which is the same as section 10(4) of the Extradition Law, No. 8of 1977 of Sri Lanka) what the magistrate had to decide waswhether the evidence was sufficient to warrant trial if theoffence had been committed within his jurisdiction; it was nothis duty to have regard to Commonwealth statutes other thanthose relating to the offence charged; nor was he required tohave regard to whether the trial would lead to conviction inthe Commonwealth territory. The interpretation of the expression“sufficient” with reference to the English authorities suggeststhat the standard of proof required is nothing less than a primafacie case.
With regard to Charges 1 to 9 the evidence reveals that all thecheques connected with the charges were in favour of theCorporalioo. Th-'; cheques were crossed “Not negotiable” and
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payable to the payee’s account, and in at least 6 of the chequesthey were crossed to the credit of particular accounts of theCorporation by special crossing so that they had to go into theCorporation’s Bank account.
In the course of his order the learned High Court Judge statedthat Benwell embezzled the cheques before dispatching themfor collection, when he credited them to his own account with theCorporation and that “ when the cheques were realised and themoney was paid into the Corporation’s account with its Bankers,it was no longer the money of the Corporation as the chequeshad been credited to Benwell’s account. The Corporation was onlyholding it for him. In actual fact the money did go into Benwell’s} ■ t*rate account else he would not have been able to draw it allflat as E 109 shows. Benwell has intercepted the cheques andprevented his master, the Corporation, from receiving the moneyon them. His act of diverting the cheques to his own use in viola-tion of his trust or duty amounts to embezzlement according tothe definition of the word given earlier. ”
Embezzlement, however, implies that there must be intercep-tion of property by a clerk or servant received for his masterbefore it reaches the possession of his master. There can, there-fore, be no embezzlement of the valuable securities since inter-ception of a cheque, in order to amount to embezzlement of thecheque, must effectively he prevented from reaching the accountof the master, otherwise, the attempt at embezzlement fails what-ever other offence may be committed.
According to Olivier and the summary of evidence the corpusgot all the relevant mortgages relating to the first 9 chargesdischarged. Therefore, the mortgagors suffered no loss. Olivierstated that the corpus instead of crediting the relevant chequesto the mortgagor’s account in the Corporation credited it to hisown savings account. However, the prosecution did not produce asingle account of any of the mortgagors nor was the personalsavings account of the corpus produced in proof of Olivier’sstatement.
The discharge of the mortgages had been witnessed by Benwell.But Olivier emitted to point out that Benwell merely witnessedthe signatures of two of the attorneys of the Corporation on thedischarge document as a Justice of the Peace. In fact B. A. C.Chittenden, Manager of the Corporation, had signed the dis-charges of 6 of the 9 mortgages and Olivier himself had signedone (charge 6). In other words, it would have been known tothe responsible authorities of the Corporation that the chequeshad been received in discharge of the mortgages.
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The summary of facts and Olivier’s oral testimony alleged that,on each of the 9 charges, after crediting the cheques to his ownsavings account, Benwell continued to make interest paymentson behalf of the mortgagors to the Corporation and so concealedhis misappropriation or embezzlement. However, the variousmortgagors’ accounts were not produced to prove this and thelearned High Court Judge correctly held that there was noevidence whatsoever of this allegation.
The prosecution produced applications for unsecured depositswhich Olivier stated were signed by Benwell on or about thedates of the relevant cheques and for the same amounts or forlarger amounts. Olivier purported to identify Benwell’s signatureon these documents. But there were certain other importantentries in the body of the document not referred to. One set ofentries referred to the Bank and the amounts of the relevantcheques, the other referred to a Bank and the amount necessaryto make up the full amount of the deposits. Olivier did not statewho had made these entries.
Tire Accountant, Cashier or the Auditor who had presumablyexamined these documents and made entries on them was notcalled to testify to the entries in the body of the document. Therewere alterations of the addresses of the corpus on these docu-ments. The most obvious error was the address on the documentE106 dated 29.5.1978. The original address was given as 13,Burraneer Bay Road which the corpus had sold on 3.3.1978,On this day the corpus was residing at Unit 64, 22 Waruda Street,Kirribilli and sold the Toyota car to Warmeant. The second setof cheques to make up the full amount was not produced. Therewas nothing in the documents to show on the face of them thatthey were the identical cheques. There was no proof that adeposit did in fact take place as the corpus’ savings account inthe Corporation was not produced.
Olivier produced three uncertified Computer Sheets E86 whichhe said was the Ledger Card of Benwell in the books of theCorporation. He stated that E86 set out the investments andamounts deposited by Benwell with the Corporation. He hadmade certain pencil marks on E86 of the numbers 1-9 againstthe deposits representing charges 1 to 9. He did not state that ESScontained any withdrawals. Olivier relied substantially on E86in order to establish that Benwell credited his personal savingsaccount and not the Corporation’s account with the relevantavailable securities. There was no clear evidence as to who wasresponsible for crediting these cheques to Benwell”s account.
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There was no evidence of any movement of money from theemployer’s account to the savings account or other account ofthe corpus.
The suggestion of internal manipulation rested on inconclusiveevidence. No cheques for withdrawals were produced, no bankaccount or extract from banker’s books were produced. No allegedinstructions given by the corpus regarding the crediting of thecheques to his account to any other officer or accountant orcashier were produced and no such person called.
Olivier stated that on 9.6.1978 prior to Benwell’s resignationthe balance in his private Investment Account was nil. There-after he produced E109 which was not certified. He stated itwas made by him from primary documents (not produced) andE109 showed the deposits and withdrawals by Benwell and thecheque numbers relating to those documents.
An inspection of E86 and E109 reveals several discrepancies.There are 9 items in E86 which are preceded by a dash or minussign. Oliver gave no interpretation of these signs, whetherthey indicated deposits or withdrawals. If they are depositsthen there are 17 items of deposits in E86 totalling $ 72,100 whichare not found in E109. If thev are withdrawals 5 items ofdeposits in E86 totalling $ 38,200 are not found in E109- Only2 items of deposits in E86 (other than the 9 items covered bythe 9 counts) are found in E109, namely,
4.8.1977—$ 2,50019.9.1977—$ 6;Q00
Assuming that the minus items in E86 indicate withdrawals,11 items of withdrawals totalling $ 74,000 which are found inE109 are not found in E86. If the 8 items in E86 referred to aboveare taken as deposits and if Benwell credited the 9 items coveredby the 9 charges, then with the 2 other items of Benwell’sdeposits taken into E109 the balance as at 9.6.1978 in his savingsaccount should have been at least $ 38,200, and not the nilbalance as shown in E109 and stated by Olivier.
On the other hand, if the 11 items of withdrawals referred toabove in E109 and which are not included in E86 are excludedon the basis that E86 is correct and, therefore, E109 is wrong, thenthere should have been $ 78,200 plus $ 74,000—$ 112,200 which ismore than the sum of $ 99,500 covered by the charges 1 to 9.From the sum of $ 99,500 if a total sum of $ 3,463.06 is deducted,being the total of the small cheques, alleged to have been drawnby Benwell to make up the amounts in E86, E93, E96, E100, E104,E105 and E106 there will be a balance of $ 96,036.94.
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Benwelf v. Republic of Sri Lanka (Colin-Thome, J.)
209
It is clear, therefore, that the documents E86 and E109 cannotbe reconciled. E.i09 has been drawn up by Olivier ostensibly toshow withdrawals of alleged illegal deposits soon after thedeposits were made. This achieved by the .intermediatedeposits including a deposit of $ 19,300 on 1.1.1978 in E86 beingignored. In this way the deposits and withdrawals of 1977 and 1978are both made to total $ 108,000 and a nil balance is shown on
in E109. By the Investment Account itself not beingproduced the balances of 1976 are not shown.
E109 was prepared by Olivier from some other document3,He did not state what his sources were or how he prepared E109nor was this document authenticated by him. The learned HighCourt Judge held that E109 was admissible under section 65(7)-of the Evidence Ordinance which reads as follows: —
“ Secondary evidence may be given of the existence, con-dition, or contents of a document
when the originals consist of numerous accounts or ocherdocuments which cannot conveniently be examined in Court,and the fact to be proved is the general result of the whole
collectionevidence may be
given as to the general result of the document by any personwho has examined them, and who is skilled in the examina-tion of such documents.”
There is no evidence, however, that the original documentsconsist of numerous accounts or other documents which cannotconveniently be examined in Court. Furthermore, the fact to beproved was not only the general result, but also the detailedresults relating to the 9 charges. The requisites of section 65 (7)have not been complied with. E109 is derivative evidence andthe absence of the document or documents from which it wasderived was completely unaccounted for. E109 is, therefore, purehearsay evidence and inadmissible under section 65 (7) of theEvidence Ordinance.
In R. v. Governor Brixton Prison, ex-parte Sadri (3)> an-order was made under section 5 of the Fugitive Offenders’ Act,1881, by a Magistrate committing S to prison pending his returnin custody to Aden. S had been arrested on a warrant charginghim with three offences committed in Aden when he was anaccountant employed by a firm there, namely, falsification ofaccounts in a cash book, theft and conspiracy to commit acriminal breach of trust. The Magistrate had before him affida-vits from two partners and the man who succeeded S asaccountant in the firm dealing with the examination of the cashbook and with the results of the examination, but neither thecash book nor any authenticated copies of it or of the extracts
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referred to in it were available. It was held that S was entitledto a writ of habeas corpus because, in the absence of the cashbook itself or of authenticated copies of it there was no admissibleevidence which could satisfy the Magistrate that the strong orprobable presumption of guilt predicated by section 5 of the Actof 1881 was raised, and, therefore, the case could not be sentback to the Magistrate. At page 750 Lord Parker, C.J. stated :
“ I think that requisitioning countries putting themachinery of the Fugitive Offenders Act, 1881, into forceshould come into this country properly armed with thenecessary material. This Court certainly does not wish tomake difficulties and I would like to make it plain that,for my part, I should not have thought that it was necessaryfor every exhibit to depositions taken in the foreign countryor authenticated copies of every exhibit to be brought overto this country nor, indeed, all the exhibits in the case ofa series of counts of a similar nature; but it does seem tome that, when the exhibit in question is the very document,as here, which it is alleged was falsified, at least the requisi-tioning country should either send the document or providean authenticated copy of it or of the relevant extracts.”
In the instant case, the prosecution relied substantially on thedocuments E86 and El-99 to prove the charges of embezzlementagainst Benwell. E109 was a vital document, the authenticityof which was hotly contested. As E1Q9 had not been properly-authenticated and as there was no evidence of its primary sourcesthere was no means of testing its accuracy in relation to theoriginal documents. It was, therefore, pure hearsay andinadmissible in evidence.
E86 consisted of three computer sheets and the learned HighCourt Judge held that these sheets were admissible under section34 of the Evidence Ordinance which states that :
“ Entries in books of account regularly kept in the courseof business, are relevant whenever they refer to a matterinto which the Court has to inquire but such statementsalone shall not be sufficient evidence to charge any personwith liability. ”
Under section 34 the word ‘ book ’ signifies a collection of sheetsof paper bound together with the intention that such bindingshall be permanent and the papers used collectively in onevolume- Unbound sheets of paper in whatever quantity, thoughfilled up with one continuous account, are not a ‘book ofaccount.' Loose sheets of paper containing accounts have not the
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Benwell v. Republic of Sri Lanka {Colin-Thome, J.)
211
probative force of a book of account regularly kept. SeeMonir’s Principles of the Law of Evidence (1872), 4th Edition,at page 279, and Ameer Ali’s Law of Evidence, 11th Edition,Vol. I—page 780. Section 34 was in existence long before theinvention of computers. It was never contemplated that section34 should extend to loose sheets of paper like E86.
It is axiomatic that entries in books of account kept in thecourse of business are admissible for corroborating the evidenceof the person who made such entries. Corroboration is bestafforded by the evidence of the person who wrote the books ofaccount and in whose presence the transaction took place.
In the instant case the evidence of the person who operatedthe computer when E86 was made was not called as a witness.There was no means, therefore of ascertaining on what materialE86 was prepared. Olivier did not make E86 and there was noevidence that he operated the computer at the relevant time.There was no evidence that E86 was an original document inorder to make it admissible under section 34.
Derivative evidence has been ruled out by the English Courts,vide R. v. Governor Brixton Prison, ex-parte Sadri (supra).Hearsay evidence has also been ruled out: Vide Halsbury’s Lawsof England, 4th Edition, Vol. 18 page 97 para 235—Note 3,Ex-Parte Sirugo (1967) where hearsay evidence was held to beinadmissible for purposes of testing the sufficiency of evidence.It has also been held that it is doubtful whether bank accountsand statements attached to duly authenticated documents areadmissible as evidence of those accounts- Under English Lawsuch evidence may be adduced by the production of copies underthe Bankers’ Book Evidence Act 1879 or by calling a representa-tive of the Bank. Vide Halsbury’s Laws of England 4th Ed. Vol.18, page 114, para. 269, Note 8-Ex-Parte Jenkins (1969).
Under section 62 of the Evidence Ordinance primary evidencemeans the document itself produced for the inspection of theCourt, and Explanation 2 states that—“ Where a number of docu-ments are all made by one uniform process as in the case ofprinting, lithography, or photography, each is primary evidenceof the contents of the rest; but where they are all copies of acommon original they are not primary evidence of the contentsof the original."
Under section 63(2) of the Evidence Ordinance—“Secondaryevidence means and includes copies made from the original bymechanical processes which in themselves insure the accuracy ofth~ copy and copies compared with such copies.” There is nomaterial that E86 was made with other documents by one uniform
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process or that it is a copy made from the original by a mechanicalprocess which in itself insures the accuracy of the copy. A mereglance at E86 shows that, even apart from the ink entries thewhole of it could not have been made by one uniform process.Entries for the year 1977 both precede and follow entries for theyear 1978 on the second sheet. No explanation has been given forthis unusual recording. The document E86 does not satisfy therequirements of sections 62 and 63 (2) of the Evidence Ordinance.
Computer evidence is in a category of its own. It is neitheroriginal evidence nor derivative evidence and in admittng such adocument a Court must be satisfied that the document has notbeen tampered with. Under the law of Sri Lanka computerevidence is not admissible under any section of the EvidenceOrdinance and certainly not under section 34. One has, there-fore, to look to the law of England which can be brought in undersection 100 of the Evidence Ordinance.
In England under the Civil Evidence Act, 1968, computerevidence has been made admissible only in civil cases and thattoo under the most stringent conditions as set out in section 5of the Act. One of these conditions is that throughout the materialpare of the relevant period the computer was operating properly.In other words, there must be evidence before Court of theaccuracy of the contents of the documents produced by the com-puter, and that the information contained in the statementreproduces or is derived from information supplied to the com-puter in the ordinary course of activities regularly carried outduring the relevant period. In any civil proceedings where it isdesired to give a statement in evidence by virtue of this section,a certificate—
identifying the document containing the statement and
describing the manner in which it was produced ;
giving such particulars of any device involved in the
production of that document as may be appropriatefor the purposes of showing that the document wasproduced by a computer ;
that the computer was operating properly and accurately
during the relevant period etc., signed by a personoccupying a responsible position in relation to theoperation of the relevant device must be produced.
In any event such evidence is not admissible in English Lawin criminal cases. Such evidence is clearly inadmissible underany provisions of the Evidence Ordinance of Sri Lanka.
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Benwell v. Republic of Sri Lanka {Colin-Thome, J.J
213
With regard to Charge 12 of obtaining property by falsepretences the Registration certificate of the Toyota car which wasa vital document in the whole transaction was not produced-There was no reference to the Australian Law corresponding tothe Motor Traffic Act of Sri Lanka (Cap- 203) relating to Regis-tration Certificates. One has, therefore, to be guided by the Lawof Sri Lanka on this question. Vide Dicey’s Conflict of Laws,6th Ed. p. 866, Rule 194—
“••any differences alleged to exist
between foreign and English Law must be proved by expertevidence to the satisfaction of the Court, as matters of fact,not of law, and in the absence of satisfactory proof theforeign law will be held to be identical with the EnglishLaw respecting the matter in question.”
See also Government of Australia v. Harrod (supra) where theHouse of Lords held that under section 7 (5) of the Fugitive Offen-ders Act 1367 (same as section 10(4) of the Extradition Law ofSri Lanka) what the Magistrate had to decide was whether theevidence was sufficient to warrant trial if the offence had beencommitted within his jurisdiction. It was not his duty to haveregard to Commonwealth Statutes other than those relating to-the offence charged.
Under the Motor Traffic Act of Sri Lanka the certificate ofregistration would reveal to a prospective purchaser the identityof the absolute owner of a vehicle and whether the vehicle wascovered by a hire-purchase agreement. Under section 3(5) ofthe Motor Traffic Act under a hire-purchase agreement the nameof the person who let the vehicle is registered as the absoluteowner. So that a glance at a registration certificate made underthe Motor Traffic Act would reveal whether a vehicle is let undera hire-purchase agreement and under any encumbrance. Nothingin this Act prevents a registered owner from selling a vehicle.
According to Warmeant in the course of the transaction heexamined the registration certificate of the Toyota car and foundthat Benwell was the owner of the vehicle. He stated thatBenwell said that he bought it “ for his mother ”. In other words,there was no representation that he bought it in his mother'sname. With regard to the 2nd part of the representation therewas no evidence that Benwell tried to make out that the carwas free and unencumbered of any debt. In the absence of theregistration certificate and of any reference to the AustralianLaw there is no material before this Court to conclude whetherthere was any obligation on Benwell to disclose that the car was
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covered by hire-purchase agreement. If the certificate of regis-tration disclosed this as it will do in Sri Lanka then there is nobasis for the charge.
Another inconsistent feature in the evidence is that accordingto the summary of facts at the time of the sale of the car toWarmeant, Bemvell owed the Corporation $2,891.20. Butaccording to Warmeant he had to pay an additional $ 1,200 tothe Corporation. According to Olivier the nett balance out-standing at the time of Benwell’s’ resignation in relation to thevehicle was $ 2,342 after allowing for a statutory rebate.
Section 12 (1) of the Sale of Goods Act of Sri Lanka, Cap. 84,reads:
“ Where a contract of sale is subject to any condition tobe fulfilled by the seller, the buyer may waive the condi-tion or may elect to treat the breach of such condition as abreach of warranty, and not as a ground for treating thecontract as repudiated. ”
So that at the most the transaction with Warmeant was a breachof warranty which may give rise to a claim for damages. Takingthe totality of the evidence the material is insufficient to commitBenwell on a charge of obtaining property by false pretencesunder section 179 of the New South Wales Crimes Act 1900 orunder section 398 of the Penal Code.
For the reasons stated we allow the application and grant andissue a Mandate in the nature of a writ of habeas corpus in favourof the petitioner in terms of section 11 of the Extradition Law,No. 8 of 1977 read with section 141 of the Constitution of theDemocratic Socialist Republic of Sri Lanka. We hold that theorder dated 2nd February 1979, of the High Court committingthe corpus to custody and the grounds of the said committal areinvalid and we set it aside and order that the corpus is not liableto be extradited or to be committed to or kept in custody and isto be discharged from his bail on the warrants issued in this caseforthwith.
For the reasons stated we allow the connected application C. A.No. 633/75 for revision under section 11 of the Administrationof Justice Law, No. 44 of 1973, read with section 11 !3) of theExtradition Law7, No. 8 of 1977, and make the same order asaforesaid.
RANASINGHE, J.—I agree.ATUKOBALE, J.—I agree.Application allowed.