REGINA v. J. ANANDAGODA

057-NLR-NLR-V-62-REGINA-v.-J.-ANANDAGODA.pdf


Regina v. Anandagoda
241
1980[Ik tece Court of Crimutai Appeal]
Present: Basnayake, C.J. (President), Sansoni, J., andH. N. G. Fernando, J.REGINA v. J. ANANDAGODAAppeal 114 op 1960, with Application 136S. C. 14—M. C. A nuradh ctpura, 17176
Evidence—Admissions—Confession—Statement made by an accused to a police officer—Admissibility—“ Fact in issue ”—“ Relevant fact ”—Evidence Ordinance,as. 5, 17 (1) and (2), 25.
The exclusion of evidence the gapfigal gCQiJJid enunciated in The King v.Kalubanda {15 N. L. R. 422) and later applied in Weerahone v. Ranhamy(27 1ST. L. R. 267)—namely, that a statement made by an accused person to apolice officer •which clearly or by implication shows that a defence taken may befalse, or which even permits an inference to be drawn, prejudicial to the accused,is a confession within the meaning of section 17 (2) of the Evidence Ordinance—should no longer be regarded as valid.i A statement made to a police, officer bya person accused of an offence would be inadmissible in evidence only if it iseither an admission of the commission of the offence by the accused or elsesuggests the inference that the accused committed the offence.
In a prosecution for murder—
Held, that admissions made by the accused person to a police officer of factswhich could establish, on the part of the accused, motive, or opportunity, orknowledge of the death of the deceased, were admissible in evidence and didnot constitute a confession within the meaning of sections 17 (2) and 25 of theEvidence Ordinance.
Ap
PEAT/ against a conviction in a trial before the Supreme Court.
The appellant was convicted of having murdered one Adeline Vitharaneon 14th March 1959 at a place called Timbiriwewa near the 27th mile-poston the road between Puttalam and Anuradhapura. In addition to othertestimony, the prosecution led in evidence certain admissions which werealleged to have been made by the appellant to Police Officers. InspectorGoonetilleke testified that the appellant stated to him that he was intend-ing to marry some young woman, who was not Adeline Vitharane. Ins-pector Dharmaratna testified to the following admissions made to himby the appellant:—(a) That Adeline Vitharane had been his mistressfor two or three years and had a child by him ; that Adeline was insistingthat he marry her but that he had been putting it off; that Adelinehad become an unbearable nuisance to him ; and that Adeline had cometo see him at Kalutara on 2nd March 1959, and that he had kept her in ahouse at Kalawellawa.(6) That on 14th March he had started in his
car with Adeline and the 2nd accused for Anuradhapura via Puttalam,and that they had reached a hotel at Puttalam between 8 and 9 p.m.
That he had taken a motor car from Avis Motors on 15th March and11—LX IT
2J. N. B. 13892—1,995 (10/60),
H. N. G. FERNANDO, J-—Regina v. A nandagoda
had gone to Annradhapura via Puttalam, and that at about 3 p.m. onthat day, he had passed the body of Adeline, and had slowed down andnoticed people and Police Officers there.
The admissions had the effect of inducing the jury to believe (a) thatthe appellant had a strong motive for desiring the death of AdelineVitharane, (6) that the appellant was in her company when she was lastseen alive by witnesses in the case, and had an opportunity to be in hercompany at the time when her death was caused, (c) that he had plannedto use a. hired car,- and not his own car, for the trip with Adeline on theday osf her death, and id) that his subsequent conduct tended to showthat .he may have had knowledge that her body lay at the place whereit was ultimately discovered.
• It was contended for the appellant that the admissions, taken together,constituted a confession and that, having been made to Police Officers,they were led in evidence in contravention of section 25 of the EvidenceOrdinance.
T. W. Rajaratnann, with R. L>. R. Kulawansa and Kulan Ratnesar(retained) and J. C. Thurairatnam (assigned), for the accused-appellant.
C. Alles, Acting Solicitor-General, with V. S. A. Pullenayegum,Crown Counsel, and N. Tittawela, Crown Counsel, for the Attorney-General.
..Cur. adv. vult.
August 4, 1960. H. N. G. Feena^do, J.—
The appellant and two others were indicted on two counts, (1) with. conspiracy to commit the murder of one Adeline Vitharane, and (2)with the murder of Adeline Vitharane on 14th March 1959 at a placecalled Timbiriwewa. Prior to the summing-up of the learned Trial Judge,the 3rd accused was discharged on application made by the Crown to "with-draw the indictment against him, and the jury ultimately found the 2ndaccused not guilty on both counts. The appellant was unanimouslyacquitted on the first count of conspiracy, but he was convicted on thesecond count of murder upon a verdict of six to one. The appellant’sappeal to this Court was dismissed on 4th August 1960, but wre reservedour reasons because one ground of appeal, which was ably argued bycounsel appearing before us for the appellant, raised an important questionof law requiring decision by a considered judgment. It is in our opinionunnecessary to refer-to the other grounds which were taken.
Piate; at;night on 14th March 1959, the dead bodj' of a woman wasdiscovered lying "at Timbiriwewa near the 27th mile-post on the roadbetween Puttalam . and Anuradhapura.. A post-mortem- examinationconducted on 16th March 1959, revealed that the woman was between20 and 25 years of age, that she had. been about seven months advancedin. pregnancy, and that her body bore numerous in juries consistent withher having; been run-over by a inotor car. The case for the prosecutionwas that the dead body was that of Adeline Vitharane, that her death
S. N. G. FERNANDO, J.—Regina v. Anandagoda
243
had been caused by a motor car being deliberately driven over her bodyat least twice, that the consequent injuries were the cause of her death,and that death had occurred between 11 p.m. and midnight on 14thMarch 1959. It was not contended in appeal that it was in any wayunjustifiable for the jury to decide upon the evidence either that theidentity of the dead woman had been proved, or that she had been killedin the manner and at the time and place asserted by the prosecution.
The prosecution called witnesses who deposed to the following matters,inter alia :—
(а)That the appellant had, under a name different to that by which
he was ordinarily known, been acquainted with Adeline, anintelligent and attractive young woman, from about November1956 ; that he was the father of an illegitimate child born toAdeline in August 1957 ; that he had thereafter promisedto marry her, and that he had communicated with herunder his assumed name and received letters from her at an"accommodation address” furnished by him.
(б)That the appellant had been on friendly terms with a family of
better social status than that of Adeline’s relatives ; that heoccasionally stayed at the home of that family, and that it wasapparent that he proposed to contract a marriage with theyoung daughter of that family.
(o)That the appellant had been the owner of a Fiat car No. 1 <§ G2G5,and that, although there was a change of registration inJanuary 1959, he had continued thereafter to be the actualuser and the virtual owner of that car.
That Adeline, on 19th January 1959, after discovering the time
identity of the appellant, wrote to the Headmaster of the schoolat Kalutara at which the appellant was employed as a teacher,alleging that the appellant was the father of her child and hadpromised to marry her, and expressing her intention to representmatters to the Director of Education ; that this letter wasshown thereafter to the appellant by the Principal of the school.
That Adeline left her home at Katugastota on 2nd March 1959,
having expressed her intention to see-'her father and to meetthe appellant at Kalutara in order to obtain some money fromhim.
(/) That on 2nd March 1959 a young woman, apparently pregnant,was seen near the fence of the school at Kalutara, that a messagegiven by the young woman was delivered to the appellant inthe school, and that he afterwards came in a car and took heraway ; that a young woman identified as Adeline was seenlater on the same day at the village of Kalawellawa and hadresided for a few days in that village with the family of one AloSingho ; and that the appellant himself had been seen in hiscar in that village, at least on one occasion with Alo Singhoand on another in the village bazaar.
244H. N. G. FERNANDO, J.—Regina v. Anandagoda
(g) That the appellant on one occasion stopped his car close to AloSingho’s house and sounded his horn, whereupon Alo Singhocame up to the car and after speaking to the appellant returnedto his house ; that shortly thereafter Adeline came to the cardressed in a saree and left in the car with the first and secondaccused, taking with her a black hand-bag and an umbrella.There was little room for doubt, having regard to his evidence,that the witness who deposed to these facts spoke of an incidentwhich took place on Saturday, 14th March 1959.
(A) That the 2nd accused, a person well-known to the appellant was abrother of Alo Singho, who has been referred to above.
That the appellant drove a car similar to the car No. 1 <§ 6265 to a
petrol station at Horana in the afternoon of 14th March withthe 2nd accused and a woman, and purchased petrol .there ;that on the night of 14th March at about 9 or 9.30 p.m. the1st, 2nd and 3rd accused had come to a hotel in Puttalam inthe company of a young woman dressed in a saree and thatdinner had been served to them.
(j)That the appellant had, probably on 12th March 1959, tried to
obtain a car on rent from a hire service in Colombo for use onthe 14th and 15th of March, and that because a car was notavailable for the 14th, the appellant had rented a car for 15thMarch and used it on that day to make a journey of 277 miles,thus rendering it possible that he could on the 15th have made atrip to the place where the body was found.
(fc) That despite the fact that the appellant’s car had been “ serviced”on 16th March and the undercarriage cleaned with penetratingoil, four hairs similar to (though not shown to have beenidentical with) Adeline’s hair were found adhering to the under-carriage when the car was.later examined.
In addition to the testimony which has been summarised above, theprosecution led in evidence certain admissions which were alleged to havebeen made by the appellant to Police Officers. Inspector Goonetilleketestified that the appellant stated to him that he was intending to marrysome young woman, who was not Adeline Vitharane. Inspector Dharma-ratna testified to the following admissions made to him by the appellant:—
(а)That Adeline Vitharane had been his mistress for two or three years
and had a child by him ; that Adeline was insisting that he marryher but that he had been putting it off ; that Adeline had becomean unbearable nuisance to him ; and that Adeline had come tosee him at Kalutara on 2nd March 1959, and that he had kepther in a house at Kalawellawa.
(б)That on 14th March he had started in his car with Adeline and the
2nd accused for Anuradhapura via Puttalam, and that theyhad reached a hotel at Puttalam between 8 and 9 p.m.
H. N. G. FERNANDO, J.—Regina v. Anandagoda
245
(c) That he had taken a motor car from Avis Motors on 15th Marchand had gone to Annradhapura via Puttalam, and that atabout 3 p.m. on that day, he had passed the body of AdelineVitharane, and had slowed down and noticed people andPolice Officers there.
Appellant’s counsel’s principal argument has been that these admis-sions, taken together, constitute a confession, and that having been madeto Police Officers, they were led in evidence in contravention of section25 of the Evidence Ordinance. It has to be borne in mind in consideringthis argument that by section 17 (2) of the Evidence Ordinance a con-fession is defined as “ an admission made at any time by a person accusedof an offence, stating or suggesting the inference that he committed theoffence ”, that is to say, an admission, which (a) states that he committedthe offence, or (6) suggests the inference that he committed the offence.
Counsel relied chiefly on the decision in The King v. Kaluhanda 1.In bis statutory statement made on a charge of causing grievous hurt toone Balahamy, the accused in that case said that he had struck Balahamywith a mamoty but did so whilst defending himself against an attackby Balahamy with a knife. In rebuttal, Crown Counsel elicited from twoHeadmen that the accused had made statements but had not statedthat Balahamy had attacked or threatened him with a knife, or that theaccused himself had used a mamoty. A Bench of three Judges answeredin the affirmative the question whether the Headmen gave evidence of anadmission stating or suggesting the inference that the accused had com-mitted the offence. The following observations in the judgments indi-cate the opinion of the Bench that the Headmen virtually stated that theaccused had made a confession :—
“ The effect on the mind of the jury could hardly have been differentif the Headmen had been allowed to give evidence of what the accusedhad actually said. ”
“ The Headmen were allowed to give evidence of what was insubstance a confession. ”
(per Lascelles, C.J.)
** The evidence was as much open to objection as it would have beenhad it been evidence of the actual contents of the statements allegedto have been made by the accused. ”
(per Pereira, J.)
“ The Police Officer’s evidence was to the effect that a statementmade by the accused differed from one made to the Magistrate and,in my opinion, leads to an inference that the accused had made aconfession. ”
(per Ennis, J.)
The ratio decidendi to be derived from these passages is that evidencetending to suggest that an accused person must have admitted to a Police
1 (1912) 15 N. A R. 422.
2»
J. N". R 13892 (10/C0)
246
H. N. G. FERNANDO, J.—Regina v. Anandagoda
Officer that he had committed the act charged must be excluded on theground that to inform the jury that a confession had been made was asmuch an evil as to inform them of the content of the confession. Thereare nevertheless other expressions of opinion in the judgments which mayjustify the argument that a different ratio decidendi was also adopted bythe Court —
“ Statements made by accused persons to Police Officers, althoughintended to be made in self-exculpation, may nevertheless amount toadmissions of incriminating circumstances, and so being (? be incapable)of proof under section 25. ”
“ The effect of this disclosure (by the Headmen) being such as tosuggest the inference that the defence on which the accused relied wasnot set up by him at the time when, if true, it would naturally havebeen set up, and that it was therefore false. ”
(per Lascelles, C.J.)
“ The Police Officer’s evidence would, in effect, have wiped out theonly exculpatory circumstance in the statutory statement made bythe accused, leaving that statement as an unqualified admission offact that the accused had struck Balahamy with a mamoty. ”
“ The evidence in question in this case was calculated to have in themind of the jury the effect of eliminating from the statutory statementof the accused the only circumstance he relied cn in that statement as adefence, namely, the circumstance that he himself had been attacked.”
(per Pereira, J.)
These.opinions led Bertram, C.J. to express himself obiter in The King v.TJkkubanda 1, thus :
“ What I take Hex v. KaVubanda (sugira) to have decided is this :That if the Crown at the trial of a .prisoner tenders in evidence a state-ment made by the prisoner, whether self-inculpatory or self-exculpatoryin intention, with a view to an inference being drawn by the Court fromthat statement against the prisoner, that statement becomes ex vitermini, as defined by section 17 (2), a “ confession ”, and that if it wasmade to a Police Officer it cannot be received in evidence. ”
It will be seen that the Judges who decided The King v. Kalubanda 2clearly stated two different grounds for holding that the evidence given^>y the Headmen was inadmissible :—firstly, the special ground that topermit the Court to be informed, of the mere fact that an accused person= had made a confession to a Police Officer was tantamount to leadingevidence of the content of the confession ; and secxmdly, that a statementmade by an accused person to a Police Officer which clearly or by impli-cation shows that a defence taken may be false, or which even permitsan inference to be drawn, prejudicial to the accused, is a confession withinthe meaning of section 17 (2). This second ground will for conveniencebe referred to in this judgment as the “ general ground of exclusion
i (1923) 24 N. L. R. 327.
* (1912) 15 N. L. R. 422.
H. N- G. FERNANDO, J.—Regina v. A.nccnd.agoda
24 7
The first limb of the argument addressed to us by counsel for theappellant has been that the admissions made by the appellant shouldhave been excluded on the general ground of exclusion, and in con-sidering this argument it is useful to summarise many of the relevantdecisions, although all of them were not referred to by counsel.
The general ground of ex elusion was utilized in W eeralcone v. Ranhamy x.A Police Officer who was the first witness called was allowed to give thisevidence :—“ The accused denied the cutting. They said that Aron{the injured man) went to take the knife from his father and got cutaccidentally ”. This was ruled inadmissible by. Branch, C.J. in thefollowing terms :—
“ It placed the accused on the spot and gave what was stated to betheir explanation of how the wound was inflicted, an explanation whichmay have created an unfavourable impression on the mind of theMagistrate …. The Legislature desired to prevent thereception of any evidence by Police Officers as to statements made tothem by accused persons which would either bring home the charge to theaccused or strengthen the case for the ‘prosecution. ”
Branch, C.J. in that case cited the decision in Hamid v. Karthan 2, wherethe charge was one of theft of rubber. In this case it was held that astatement made by the accused while in Police custody, that he hadactual^ effected the sale of a portion of the rubber, was a confessionand therefore inadmissible. No reasons were given in the judgment,but there have been at least two later decisions on similar lines. InDionis v. Peris Appu 3, a statement by an accused to a Constable thathe had bought a cow some years previously was held to be inadmissibleat the trial of the accused upon a charge of retaining possession of theeow knowing it to have been stolen. In Nambiar v. Fernando 4, wherethe accused was charged with dishonestly retaining a stolen shirt, theprosecution proved a statement made by him to a Constable that he hadthe shirt stitched by a tailor at Beruwela. The accused admitted in Courtthat he made the statement, but alleged it was untrue and made throughfear. Purporting to follow The King v. Kalubanda 5, Jayawardcna, A.J.held the statement to be inadmissible.
The three decisions just referred to above, do not reveal the groundsupon which they were based. The statements in each of them werenot strictly confessions because they do not. contain an admission of thecommission of the offence; nor on the other hand was it expresslydecided that the “ general ground of exclusion ” applied, for the reason■that the statements admitted incriminating circumstances or suggestedadverse inferences. A more appropriate ground for rejecting an ad-mission by an accused person to a Police Officer that he hail been inpossession of a stolen article may be that, since the burden is on theprosecution to prove the fact of possession, an admission of that fact may
1 (192G) 27 JST. Z,. R. 2G7.
– {1917) 4 C. W. R.'363.
5 {1912) 15 iV. L. R. 422.
(7.90S) 7 Tambiah 28.
{1925) 27 N.Zt.R. 404.
248
TT. N. G. PEBNANDO, J.—Regina v. Anandagoda
be construed as suggesting the inference either that the article had beenstolen by the accused or that he had knowledge that it had been stolen..
In the leading case of The King v. Cooray1, Garvin, A.C.J. observedthat the definition of confession has been somewhat obscured by thefrequent use of expressions such as “inference adverse to the accused”,
“ admission of in criminating circumstances ”, and “ evidence whichhas an incriminating effect ”, and that there had been a tendency tosweep into the prohibition created by section 25 statements which,had they been made to any other than a Police Officer, might not havebeen regarded as confessions. He referred to the Indian decision inDal Singh v. King Emperor2, where a statement which was in conflictwith the defence and was used for the purpose of discrediting the defencewas held to be in no sense a confession. The decision in Cooray's caseitself was that a statement by an accused person, which suggests aninference adverse to the defence set up by him, is not on that ground aconfession.
In The King v. Fernandos, the prosecution proposed to lead, as evidencein rebuttal of the version given by the accused, a statement made to aPolice Officer which included the following material :—“ I bad proceededabout four or five yards from the latrine towards the house when I fired;
I fired as I was running into my house. After firing I got into my houseand slept. Later a Police Constable told me that I had killed a man ;till then I did not know that I had shot anyone ”. Soertsz, J. refusedto allow this statement to be proved since it was “ an admission by theaccused that as a result of his firing the gun a man was shot and that hedied in consequence”. While the statement in question in that casewas not clearly an admission that the accused had shot and killed thedeceased person, there is little doubt that it suggested the inference thatthe death was caused by the accused firing the gun. Reference is alsomade in the same judgment to a submission by Crown Counsel that theobject of eliciting the statement was to show that “ the accused did notset up his present defence ”. Although mention was made in the judg-ment of the fact that the decision in KaVubanda's case ruled againstsuch a course, it was not necessary to depend on that decision, since asSoertsz, J. stated, it was possible to regard the statement as a confession.The general ground of exclusion was not the ratio decidendi of this case.
In Ghinawardena*, the appellant had made a statement to a Police-.Constable which was not inculpatory but which could establish that theaccused had met the injured person at the relevant time. In the courseof cross-examination at the trial the appellant denied that he had madesuch a statement and it was subsequently led in evidence in rebuttal,in order to discredit the defence set up by him. Howard, C.J., in deli-vering the judgment of this Court holding-the statement to be admissible,said :—.
“ If the decision in Rex -u. Kalubanda has the far-reaching effectaccepted by Bertram, C.J. in Rex v. Ukkubanda and contended for
» (1926) 28 N. L. R. 74.3 (1939) 41 N. L. R. 151.
* (1917) 86 L. J. 140.* (1944) 42 N . L. R. 217.
H. N, G. FERNANDO, J.—Regina t>. Anctndagoda
249
in this case and in Rex v. Cooray, it can, having regard to the decisionin Dal Singh v. King Emperor, be no longer regarded as good law.”
This passage from the judgment in Ounawardena’s case was cited without■disapproval in the case to be next considered.
In Obiyas A.ppuhamyx, Crown Counsel elicited from a Police Officerthe fact that the appellant came to the Police Station and made a state-ment and that thereafter the appellant was arrested and taken intocustody. This evidence was held to have been improperly received,on the ground that it clearly suggested that the statement volunteeredby the appellant at the Police Station was a confusion. c< It is notsolely evidence of the aptual terms of the confession that can beobnoxious to this provision (section 25 (1) ), but any evidence which ifaccepted would lead to the inference that the accused made a confessionto a Police Officer and so * prove a confession Here again therewas no call for reference to the general ground of exclusion.
In Seyadu2, the accused stated in evidence at his trial that thedeceased person had first attacked him with a knife, that he succeededin wresting the knife, and that he thereafter stabbed the deceased inself-defence or in the course of a sudden fight. In rebuttal the prosecutionproved a statement made to a Police Officer :—“ I took the knife whichI had in my waist and stabbed the deceased with it. ” In delivering thejudgment of this Court, holding that this statement was a confession andinadmissible, Gratiaen, J. observed :—
,f The test whether an admission amounts to a confession must bedecided by reference only to its intrinsic terms. ”
The statement in this instance was quite clearly a “ confession ” in thebasic sense. (Reference has to be made later to another sentence in thejudgment of Gratiaen, J., upon which counsel for the present appellanthas relied strongly in a different connection.)
In Batcho 3, the accused gave evidence at his trial for murder andsought to bring himself within the exception of grave and sudden provo-cation by stating that the deceased had insulted and humiliated him tosuch an extent, that he completely lost his self-control and did not knowwhat he did thereafter. In cross-examination he was asked whether hehad told a single Police Officer that the deceased had insulted him inthat way. When he said in reply that he had stated so to one Mr..Nathan,Grown Counsel remarked “ I am giving you a chance of thinking it over,because Mr. Nathan can be called as a witness. ” Later Crown Counselmoved, in the presence of the jury, to call Inspector Nathan as a witnessin rebuttal of the accused’s evidence concerning his alleged statement toMr. Nathan. Although the Trial Judge did not permit the Inspectorto be called, this Court pointed out that “ the jury must have received
1 {1952) 54 N. L. R. 32.2 {1951) 53 N. L. R. 251.
s {1955) 57 N. L. R. 100.
250
TT. N. G. FERNANDO, J.—Regina v. Anandagoda
the impression that the Grown was seeking to prove that the appellantrin the course of a narrative in which he admitted to the Police that he killedthe deceased t did not state the circumstances of mitigation on which herelied at the trial ”, In view of the citation in the judgment of this-Court certain observations of Lascelles, C. J., in The King v. Kalubanda xtit has been argued before us that Batcho's case 2 is an example of the appli-cation of the general ground of exclusion. But considering that reliancewas clearly placed on the decisions in Seyadu 3 and Obiyas Appuhamy 4,and particularly because the judgment in Batcho 2 expressly refers to theinformation impliedly given to the jury that the accused had admittedthe killing of the deceased, we do not think that the judgment shouldproperly be regarded as one approving the general ground of exclusionstated in The King v. Kalubanda1.
Having regard to the decisions which have been reviewed above, it-will 'be seen that Weerakone v. Ranhamy 5 is the only case in which evi-dence of an admission to a Police Officer has been held to be inadmissible^solely upon the general ground 'of exclusion. The statement in questionin that case did place the accused on the spot, for it purported to explainthat the injured man had got cut accidentally. It surely cannot be saidthat such a statement is either an admission of the commission of theoffence or else suggests the inference that the accused committed theoffence. If such a statement can be said to assist the prosecution in anyway it assists only to prove the presence of the accused at the scene, a.fact which is perfectly “ neutral ” and cannot be regarded as being anincriminating circumstance. Can it properly be said that every personwho informs a Police Officer that he was an eye witness of some stabbingincident thereby makes an admission of an incriminating circumstance,,and that therefore such an admission should not subsequently be usedagainst him ? If indeed he is subsequently charged with having partici-pated in the stabbing, justice does not in our opinion require, nor cansection 25 read with section 17 (2) be construed to require, that such astatement cannot be used against him. We would therefore stronglyendorse the opinion expressed by Howard, C.J. in Gunawardena's case 6and hold that the general ground of exclusion enunciated in The King v.Kalubanda 1 and later applied in Weerakone v. Ranhamy 5, should nolonger be regarded as valid.
We pass now to the second limb of counsel’s argument, which was thatall the admissions alleged to have been made by the appellant to PoliceOfficers, when taken together, suggested the inference that he caused thedeath of Adeline Vitharane, or was sufficient to establish a prima facie casethat he caused her death. The language italicised above was employedby Gratiaen, J. in Seyadu's case 3 and had previously occurred in thejudgment of Rnart^., tT in The King v. Fernando 7. It will be recalledthat in the latter case, the accused had admitted that he fired a-shot and i
i(1912) 15N. L.R.422.4 (1952)54 N. L. R. 32.
* (1955) 57N. L.R.100..l(1926)27 N. L. R. 267.
8 (19.51) 53N. L.R.251.6 (1941)42 N. L. R. 217.
7 (1939) 41 N. Z,. R. 151.
H. N. G. FERNANDO, J.—Regina v. A.nandagoda
251
that later a Police Constable told him that he had killed a man. Therelevant part of the judgment is as follows :—
“ This as far as I can make out is an admission by the accused thatas a result of his firing the gun a man was shot and that he died inconsequence. Such a statement is capable of being construed as es-tablishing a prima fade case against'the accused, because the offence ofmurder is constituted inter alia by a man doing an act which is soimminently dangerous that it must in all probability cause death. Imust regard the statement from that point of view, and looking at itthat way I am doubtful that it can properly be described as an excul-patory statement? ”
We think it important to bear in mind the actual statement whichwas in contemplation, when it was referred to as one that mightestablish a prima fade case against the accused. Certainly the firsttype of statement referred to in section 17 (2) of the EvidenceOrdinance, namely, an admission that the accused committed theoffence, is one which coulci establish a prima fade case and whichby itself may be sufficient to justify a conviction. But section17 (2) includes also an admission suggesting the infer ence-ihat-the accusedcomrnjAjed the offence. The statement with which Soertsz, J. had todeal was clearly one of this type. While jnot tuimitt.ing that he shott ho-deceased —poreon, the accused nevertheless had admitted that hehad fired a shotfwhich a jury may in the circumstances have regardedas the fatal shot, or in other words, the statement suggested theinference that he was the doer of the act .charged. There is no roomfor doubt that, when Soertsz, J. referred to a confession as beingan admission which establishes or is capable of establishing aprima fade case, he had in mind only the direct admission of thecommission of the offence contemplated in section 17 (2) and theindirect admission of the commission of an offence, also 'contemplatedin that section, and actually made in the case'before him. It is apparentthat he could not have had in contemplation any statement,the intrinsic terms of which did not directly or indirectly constitutean admission that the accused was or might have been the doer of theact charged. So also is it apparent that the observation of Gratiaen, J.to a similar effect in the case of Seyadux was made with referenceto the statement actually before him :— “I took the knife whichI had in my waist and stabbed him. ” Manifestly, that statement couldhave established a prima fade case even more certainly than the statementin The King v. Fernando2 could have done. These two decisions aretherefore no authority for the proposition contended for by the presentappellant, for the prosecution did not prove in the instant case that theappellant made any admission, directly or indirectly stating that hewas the doer of the act charged.
The accused in the case of Thuraisamy3 had given evidence that hehad accidentally wounded the deceased by a gun shot and shot another
1 {1951) 53 N. L. R. 251.2 {1939) 41 N. L. It. 151.
3 {1952) 54 N. I,. R. 449.
252H. TSJ. G. FERNANDO, J.—Regina v. Anandagoda
person thereafter in self-defence. In cross-examination he denied thathe had been on friendly terms with the deceased woman and that he hadasked her to marry him shortly before her death. In rebuttal, the prose-cution led evidence of an admission by the accused to a Police Officerthat he had been in terms of intimacy with the deceased, that shehad promised to live with him, and that later he became hurt anddisappointed because she had asked him not to speak of any marriage orintimacy with her. In appeal, objection was taken that these admissionsconstituted a confession. Gunasekara, J. said of this objection :—
** If the admission of these statements was obnoxious to section 25 (1)there can be no question that the conviction could not stand. If itwas not, then it was open to the prosecution, under section 21, to provethem as admissions of relevant facts. "
He went on to decide that such an admission should, if provable, havebeen proved as part of the case for the prosecution and not in rebuttal.Thuraisamy's case therefore did not decide that a statement showing amotive and expressing feelings of hurt and resentment on the part ofthe accused must be regarded as a confession, as tending to suggest aninference that the accased committed the offence charged.
It will be seen that, apart from that ground which has been earlierdescribed as the general ground of exclusion stated in The King v.KalvJbanda 1, and of which we have already -disapproved, the decisionsof the Courts of Ceylon pronouncing upon the inadmissibility of state-ments made to Police Officers, and of evidence concerning such state-ments, appear to deal with matters which fall within one or other of fourdifferent categories :—
A statement directly admitting that the accused was the doer
of the act charged is inadmissible. (The King v. Kiriwasthu i 2;Seyadu’s case 3). It makes ho difference if, in addition to anadmission of the act charged, there is also exculpatory or miti-gatory matter, because the admission would prove the prose-cution -case and the burden of proving what is exculpatory ormitigatory is on the accused. (The King v. Itanhamy 4).
A statement which though not an admission that the accused
was the doer of the act charged, contains admissions, the intrin-sic terms of which suggest the inference that he did the act, isinadmissible. {The King v. Fernando 5j. In the cited case,there was an admission of the shooting.
Evidence of Police Officers, or qu^tAQns.. jjx. .grossinationand/orfry prnaerrnt.ing counsel, which operate to
inform the Court or create the impression that the accused hadmade a statement admitting that he was the doer of- the actcharged, is inadmissible. {The King v. Kalubanda 1 ; JBatcho 6).
i {1912) 15 N. L.R. 422.4- {1940)42 N. L.R. 221.
* {1939) 40 N. L.R. 289.6 {1939)41 N. L.R. 151.
8 {1951) 53 N. JL.R. 251.6 {1955)57 N. L.R. 100.
H. xV. G-. FERNAIN1DO, J.—Regina v. A.nandagoda
263
<iv) In a case where the prosecution has the burden of proving pos-session by the accused of a stolen article, a statement that theaccused had in fact been in possession thereof, is inadmissible.{Hamid, v. Karlhan1; Dionis v. Peris Appu1 2 ; Nambiar v.Fernando 3 7). Similar statements admitting possession in caseswhere proof of possession is an essential ingredient of the offencecharged (e.g., excise cases, cases of possession of prohibitedarticles) may probably fall into this category, But we must addthat there has not yet been any authoritative approval ofthese decisions.
We were not referred to any decision which for instance has held that;an admission indicating the existence of a strong motive for the commission<of the offence charged cannot be proved in evidence, if made to a Police'Officer. Nor, except in Weeralcone v. Ranhamy4, has it been held that.an admission establishing presence &t the scene of the offence, is a con-cession. Indeed the decision in Gunawardena5 was to the contrary-effect. The observations of Garvin, A.C.J. in Cooray’s case 6 consti–tute disapproval in strong terms of the inclination to rule out statementsanade to Police Officers merely because their reception assists to prove thecase for the prosecution.
The admissions which were proved against the appellant at his trial'had the effect of inducing the jury to believe (a) that the appellant hada strong motive for desiring the death of Adeline Vitharane, (6) that theappellant was in her company when she was last seen alive by witnessesin the case, and had an opportunity to be in her company at the timewhen her death was caused, (c) that he had planned to use a hired car,-and not his own car, for the trip with Adeline on the day of her death,and (d) that his subsequent conduct tended to show that he may have"had knowledge that her body lay at the place where it was ultimately-discovered. Counsel for the appellant had perforce to contend for the-purposes of his argument that each one of these admissions should not have•cibeen led in evidence. The decisions we have considered, apart perhaps fromThe King v. Kalubanda 7 and Weeralcone v. Ranhamy4, do not support-this contention, and it is unwarranted by the terms of section 17 ofthe Evidence Ordinance.
Subsection (1) defines an admission as a statement suggesting any■inference (i) as to any fact in issue or (ii) as to any relevant fact. TheIllustrations to section 5 show that on a charge of murder the facts inissue are only whether the person charged did a particular act, whetherthat act caused the death, and whether that act was done with a niur–derous intention. Hence it is reasonable to assume that the first kind<x>f statement referred to in subsection (1) of section 17 is an admission of
1(1017) 4 C. W. R. 363.
2(1908) 7 Tambiah 28.
3(1925) 27 N. L. R. 404.
(1926) 27 N. I. R. 267.
(1944) 42 N. R. R. 217.9 (1926) 28 N. L. R. 74.
7 (1912) 15 IV. L. R. 422.
254
H. N. G. FERNANDO, J.—JRagina v. Anandagoda
on© of these facts, and of no other. When subsection (2) is then examined,,it becomes clear that the law declares to be a confession, only that kind,of statement which is an admission of one of the self-same facts or anadmission suggesting the inference that one of the self-same facts is correct..An admission by an accused of facts which can establish motive, or oppor-tunity, or knowledge of a death, does not suggest an.inference that theoffence was committed by him ; the inference which such a fact suggests-is only that he may have had a reason or an opportunity for, or knowledgeas to the commission of, the offence. They are only relevant facts and.are not facts in issue, and (to use the language of the judgments in TheKing v. Fernando 1 and Seyadu2) are not facts the intrinsic terms offwhich are such as to be capable of establishing a prima facie case. Iffthen each of the admissions of the appellant, considered by itself, was-relevant and admissible, all taken together were equally admissible.We need only add that what has just been stated should not be construedas an expression of opinion that an admission of an intention to commitsome offence, or an admission as to the cause of the death of a deceasedperson, is a confession within the terms of section 17. No question ofthat nature arises for decision in this appeal.
Reference must also be made to the Indian case of Narayana Swami 3The judgment of the Privy Council in that case formed the basisof a submission to us that the occurrence in our section 17 (2) of the words“ suggesting the inference that he committed the offence ”, (the wordsare not in the corresponding section of the Indian enactment), has theeffect of including within the scope of the term“ confession ”, admissionsof the kind which were received in evidence in the present case. Theinterpretation we have already placed on these words sufficiently indi-cates that in our view they do not have such effect. There is nothingin the opinion of Lord Atkin which indicates that the decision of theirLordships in that partieular case would have been different if the Indiansection had been in terms identical with those which occur in our section17 (2). Even if the Courts in India have construed the meaning of suchwords, any opinion they may have expressed thereon would be obiter dictatand in the circumstances of little assistance to us.
Lastly, we would express our agreement with the observation madeby the Solicitor-General, who had conducted the prosecution at the trial offthe appellant, that the Crown had ample evidence with which to prove itscase, even if evidence of the challenged admissions had not been received.The testimony, of which a summary has been set out at the commence-ment of this judgment, was quite sufficient to justify the conviction offthe appellant.
Appeal dismissed. *
1 {1939) 41 N. L. B. 151.2 (1951) 53 N. L. JR. 251.
* (1939) A. I. R. (P.G.) 4.