084-NLR-NLR-V-69-P.-H.-WILLIAM-DE-SILVA-Appellant-and-P.P.-WICKREMASURIYA-Respondent.pdf
409
William de Silva v. Wickrcmazuriya
1967 Present: H. N. G. Fernando, C.J. Abeyesundere, J., andSri Skanda Rajah, J.P. H. WILLIAM DE SILVA, Appellant, and P. P. WICK REM ASURIYA,
Respondent
Election Petition Appeal No. 5 of 1966—Devinuwaka (Electoral
District No. 70)
Election Petition No. o of 1965
Election petition—Corrupt practice—False statements about conduct of candidate—Evidence—Police reports of election meetings—Admissibility—EvidenceOrdinatice, 35, 150—Corrupt, practices committed by several, pers -ms —Should each jinding be examined by Court on appeal ?— Ceylon (ParliamentaryElections) Order in Council, 1946, ss. S2t 82 C (/).
A police constable’s report of a speech made by a candidate's agent at anelection meeting, such as has been held in Wimalasara Banda v. Yalegama(69 N.L.R. 361) to be not admissible in evidence under section 35 of the EvidenceOrdinance in proof of any fact stated in the report, may, however, be used^ in terms of section 159= of the-Evidence Ordinance to refresh the memory ofthe police constable when he gives direct evidence as to statements made bythe agent at the election meeting. Section 159 of the Evidence Ordinanceexpressly contemplates that a witness may read a document and may subse-quently, if his memory is refreshed thereby, testify from his refreshed memoryto facts he then recollects.
Where an Election Judge has made a report under section 82 of the Parlia-mentary Elections Order in Council against a number of persons found by himto have committed corrupt practices fw agents ui » candidate, and the appealpreferred by the candidate is dismissed after consideration of only one instanceof corrupt practice, it cannot be contended that the Court should examine thevalidity in law of all the other findings of corrupt practices. The right ofappeal conferred on a party to an election petition was not intended to boutilised merely for the purpose of seeking the review of a finding prejudicialto some person who is not such a party.
Election Petition Appeal No. 5 of 1966—Devinuwara (ElectoralDistrict No. 70).
Colvin R. de Silva, with E. R. S. R. Coomara-swamy, F. R. Dias Bandara-naike, Desmond Fernando, Suriya Wickremasinghe, Nihal Jayaivickrama,and P. O. Wimalanaga, for the Respondent-Appellant.
C. Ranganathan, Q.C., with P. Navaratnarajah, Q.C., J. W. Suba-singhe, K. Thevarajah, and T. Suntheralingam, for the Petitioner-Respondent.
• Cur. adv. vuU.
LXIX—18
l*—H 4811—1,023 (6/67)
410 H. X. G. FERNANDO, C.J.—William de Silva v. Wickremasuriya
January 16, 1967. H. N. G. Fernando, C.J.—
The appellant was elected as a Member of Parliament for theElectoral District of Dcvinuwara at the General Election held in March1965. Upon an election petition filed by an opposing candidate,who is hereinafter referred to as “ the petitioner ”, the Election Judgedeclared the election to be void on the ground that corrupt practiceshad been committed by persons who were agents of the appellant. Thefive corrupt practices which were held to have been committed consistedin each case of the making of false statements affecting the character orconduct of the petitioner.
It was proved at the trial that the petitioner had been the Member ofParliament for Dcvinuwara until the dissolution in December 1964, andhad been a Member of the Sri Lanka Freedom Party, which party wasone of the member parties which had formed the Coalition Governmentholding office immediately prior to 3rd December 1964. It was also inevidence that a number of members belonging to the Sri Lanka FreedomParty had on 3rd December 1964 “ crossed over ” to the oppositionbenches, and had by casting their votes on that day contributed to adefeat of the Government in Parliament, which had the consequence thatParliament was dissolved on 18th December 1964. At the subsequentnomination of candidates for a General Election, the petitioner wasnominated as a candidate of a new party, the Sri Lanka FreedomSamajawadi Pakshaya, which was formed after the dissolution.
The charges which were held by the Election Judge to have beenestablished related to statements alleged to have been made to the effectthat the petitioner had crossed over ” and/or voted against the formerGovernment in consideration of a bribe alleged to have been acceptedby him.
At the hearing of the appeal it was argued on behalf of the appellanton various grounds that the findings of the Election Judge holding thatfive of the charges were established were all erroneous in law. But afterhearing Counsel for the petitioner in support only of the finding uponone charge, we called upon Counsel for the appellant to reply withreference only to that charge. At that stage we were satisfied that theappellant had failed to substantiate the contention that the one chargehad not been duly established. We accordingly upheld thedetermination of the Election Judge declaring the election of theappellant to have been void, and dismissed the appeal with costs.We now state our reasons.
What has been referred to in the argument as charge No. 8 in theparticulars furnished by the petitioner relates to a speech alleged tohave been made by one Yassassi Thero at a meeting held on 18th.March1965. It was not disputed at the trial that a meeting wras held on thatdate, that it was a meeting in support of the candidature of the appellant,that Yassassi Thero spoke at that meeting, and that Yassassi Thero wasan agent of the appellant. There was also ample evidence to prove these
41
H. X. G. FERNAXDO, C.J.— William de Silva v. Wickremasuriya
facts. What was in dispute at the trial, and particularly in dispute atthe appeal, was the question whether Yassassi Thero had in fact madeany statement affecting the character or conduct of the petitioner.
The only witness called on behalf of the petitioner in proof of the factthat Yassassi Thero did make a statement affecting the character orconduct of the petitioner was one Police Constable Hendrick. At a veryearly stage in his examination-in-chief Hendrick was shown a typedreport purporting to contain particulars of a meeting held at Wehella on18th March 1965 and of notes of speeches said to have been made interal;a by Yassassi Thero. The report bore the signature of P.C. Hendrickand of an Inspector of Police, but both these signatures were undated.It bore also the stamp of the Criminal Investigation Department and asignature of an officer of that Department, sufficient to establish that thereport had been received in the office of the Criminal InvestigationDepartment on 27th March 1965.
P.C. Hendrick testified that he had attended the meeting on 18thMarch 1965 and had made notes at that meeting, and had thereafter onthe same day instructed one P.C. Gunasena to type four fair copies ofthe notes : that he had thereafter read the typed script, compared itwith his notes and found it- to be correct-: that the document P57produced at the trial was one of the four copies typed on that occasion.There was other evidence to establish that P57 was one of the fourtypewritten copies delivered by Hendrick to the Inspector, and thatP57 itself was a copy subsequently transmitted to the C. I. D.P.C. Hendrick on the invitation of the Counsel for the petitioner readaloud at the trial the note in the report P57 which purported to be anote of a statement made by Yassassi Thero at the meeting.
Hendrick was thereafter asked by Counsel whether, after readingP57, he was able to recollect what Yassassi Thero had stated at thatmeeting. Having answered this question in the affirmative, Hendrickstated (in two answers) that Yassassi Thero had said that “ he (thepetitioner) had taken a bribe of Rs. 50,000 from the newspapers andvoted against the Government ”.
In the context in which this statement was made, and to which I havebriefly referred above, there is no question that the statement if madeaffected the conduct of the petitioner in his capacity as a Member ofParliament. Indeed the contrary was not seriously contended at thetrial.
It is clear from the judgment of the learned Election judge that heregarded the report P57 as being “ an official record ” admissible under8. 35 in proof of the fact that Yassassi Thero did make the statementsattributed to him in the Report P57. The statement thus actually attri-buted to him in P57 was the following : ‘1 When a motion was introducedin Parliament to make Buddhism the state religion he took1 a bribeof Rs. 50,000 from the newspapers people, opposed the motion and brokeup the Government.”. It was precisely that statement which was charged
412 H. N. G. FERNANDO, C.J.—William de Silva v. Wickrenuumriya
against Yassassi Thero in the particulars furnished by the petitioner, and■which the trial judge held in his judgment to have been made by YassassiThero.
The majority of the bench of three judges which decided the appeal inthe Rattota petition (see S. C. Minutes of 20th December I960)1 has heldthat a Report such as P57 is not an official record within the meaning ofs. 35 of the Evidence Ordinance, and is accordingly not admissible inevidence under that section in proof of any fact stated in such a report.
I adhere to the ruling in the Rattota case, which also was the basis uponwhich the appeal in the Dedigama Election Appeal was dismissed(although reasons were not there stated—see S. C. Minutes of 1.11.66).If therefore the report P57 was the sole or substantial means by which itwas established in the instant case that a false statement as to thecharacter or conduct of the petitioner had been made by Yassassi Thero,the finding, of the learned Election judge upon the charge now beingconsidered cannot be sustained.
I have pointed out however that although P.C. Hendrick first readaloud the report P57, he was expressly asked thereafter whether he could,having read the report, recall what had been said at the meeting, andthat Hendrick did then claim (o recollect-'9 part pf the alleged statement.
I cannot agree with the submission that because the record of the trialcontains a reproduction of sentences from P57, this was not a case of therefreshing of memory. Section 159 of the Evidence Ordinance expresslycontemplates that a witness may read a document and may subsequently,if his memory is refreshed thereby, testify from his refreshed memory tofacts he then recollects. That is precisely what Hendrick did in thiscase. The questions and answers put to him in cross-examination showthat even in the contemplation of cross-examining Counsel, Hendrickwas able to remember, after reading P57, something of what he hadheard stated by Yassassi Thero
“ Q. Apart from the document you have produced you have anindependent recollection of matters spoken to by speakers at thismeeting ?
A. Other than what is in P57 I have no recollection as to whatthe speakers stated at that meeting.
Q. And that is to say your recollection today of what was said atthe meeting is dependent on that note ?
A. Yes .”
It is clear from the record that even though Counsel for the petitionerclaimed that the report P57 was admissible under s. 35, he also desiredto elicit direct testimony from P.C. Hendrick as to what Yassassi Therohad stated at the election meeting. Hendrick, having read P57, saidthat he could recall what had been stated : at that stage, Counsel askedhim what he remembered, and he was permitted without objection totestify in two answers to the substance of Yassassi Thero’s statement.Hendrick thus gave evidence in terms of s. 159 ; and when he was•IFtwiofosara Banda v. Yalegama {1966) 69 U. L. R. 361.
H. N. G. FERNANDO, C.Jv—William de Silra v. WicJcremasuriya 418
permitted to do so, it must be presumed that both the Court and opposingcounsel were satisfied that his memory had been refreshed by referenceto a writing made soon after the transaction to which he testified.The learned trial Judge in fact stated that he accepted as true Hendrick’sevidence as to the time when P57 was prepared, namely on the veryday of the election meeting. He also stated that he believed Hendrick’sevidence as to what Yassassi Thero had said at the meeting. There wasthus a finding of fact, based on Hendrick’s evidence, that Yassassi Therodid make the false statement attributed to him in Hendrick’s evidence.That statement, though not as full as that specified in item 8 of theparticulars, affected the personal character or conduct of the petitionerand was made for the purpose of affecting the petitioner’s return.The Election Judge therefore duly held that Yassassi Thero, an agentof the appellant, had committed a corrupt practice. The determinationthat the election of the appellant was void had to be confirmed on thisground at least. Hence it was not necessary for us to consider whetheror not the other charges had been duly established.
Counsel for the appellant suggested that, because the Election Judgehas made a report under s. 82 of the Parliamentary Elections Orderin Council against persons found by him to have committed corruptpractices, we should consider the validity in law of those findings. Wedid not accede to this suggestion on the ground that a person so reportedhas no right of appeal to this Court unless he be either the petitioneror the respondent in an election petition, and on the further groundthat in our view the right of appeal conferred on a party to an electionpetition was not intended to be utilised merely for the purpose of seekingthe review of a finding prejudicial to some person who was not such aparty. I now find much assistance in s. 82 C, sub-section (i) of whichprovides that where the Supreme Court confirms in appeal the deter-mination of an Election Judge, the Court shall transmit to the Governor-General the report of the Election Judge made under s. 82. Where,as in the instant case, we are confirming a determination that the electionof the appellant was void, we do not appear to have any power towithhold or nullify the report made by the Election Judge. Such apower exists only in a case where the determination of an ElectionJudge is reversed on appeal.
I think fit, however, to comment on one incidental matter. TheElection Judge disbelieved the evidence of Inspector Ganegoda becauseof an impression that the Inspector was trying to assist the appellant’scase. It seems to me that there was no valid reason for forming suchan impression, which appears to have resulted from a misunderstandingon the part of cross-examining counsel of some evidence earlier givenby Ganegoda and from incautious answers to leading questions based
upon the misunderstanding.
Abbyksundebe, J.—I agree.
Sbi Skanda Rajah, J.—I agree.
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Appeal dismissed.