185-NLR-NLR-V-47-ROSALIN-NONA-et-al-Appellants-and-PERERA-S.-I.-POLICE-Respondent.pdf
DIAS J.—Bosalin Nona v. JPerera (S. 1. Police).
623
1946Present: Dias J.ROSALIN NONA et at., Appeliants, and PERERA (S. I. POLICE),
Respondent.
133—M. M. C. Colombo, 80,639.
Evidence,—Charge of assisting in managemer.it of brothel—Meaning of“ assisting"—Evidence of similar facts showing state of mind ofaccused—Admissibility—Brothels Ordinance (Cap. 25), s. 2(a)—
Evidence Ordinance (cap. 11), s. 14—Evidence in rebuttal at a summarytrial.
Where the accused was charged under section 2 (a) of the BrothelsOrdinance with assisting in the management of a brothel and theprosecution led evidence to show that on a previous occasion theaccused had accosted a person and taken him to the brothel and thaton two other occasions he had been seen in front of the brothel speakingto the person who managed the brothel—
Held that “ assisting in the management of a brothel ” involvesthe proof of a state of mind and that, therefore, the evidence wasadmissible under section 14 of the Evidence Ordinance to prove suchstate of mind, and also to rebut the defence set up by the accused.
Held further, that evidence in rebuttal cannot be led at a summarytrial before a Magistrate.
A
PPEAL against two convictions from the Municipal Magistrate’sCourt, Colombo.
S. C. E. Rodrigo, for the first and third accused, appellants.
J.O. T. Weeraratne, C.C., for the Grown.
Cur. adv. wait.
November 8, 1946. Dias J.—
There is ample evidence to support the conviction of the first accusedof the offence of managing a brothel on June 15,1946, in contravention ofsection 2 (a) of the Brothels Ordinance (Chap. 25). When the raid tookplace she ran out of the house and was arrested. In her possession wasfound a large quantity of money, including the marked currency noteas well as English currency notes. She is the wife or the mistress of thesecond accused who has absconded. No doubt he was the chief managerof this house of ill-fame ; but on the night in question he was absent, andthe first accused in his absence was managing the place. The defencedoes not contest that this was a brothel. The evidence against her isoverwhelming and the defence raised by her has'been rightly held to befalse. I cannot say that the sentence imposed on her is excessive. Theconviction and sentence of the first accused are therefore affirmed.
The third accused is the cousin of the first accused. It appears that thepolice acted on two independent sources of information. S. H. M. Mohi-deen, the manager of the Free Arabic School in Panehikawatfca road,observed that men of the armed forces, European and non-European,
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DIAS J.—Rosa/in Nona v. Perera (S. I. Police).
were being taken into house No. 109 opposite the Mosque and School.He rightly surmised that the place was being used for immoral purposes,and he, therefore, communicated with the police. Anthonipillai, asoldier, was found to be suffering from venereal disease. On informationgiven by him, the military police communicated with the civil police.
A raid was then arranged and on the night in question Mr. R. C. Perera,Chief Inspector of Police, Flight Sergeant Brown, Gunner Barrett,Corporal Bowman of the military police and other constables went to thespot. Brown was given a marked ten-rupee note. He and Barrett wereinstructed to go to the house, while the rest of the raiding party watched.
Barret says he saw the third accused take two other Europeans intothe house. After that the 3rd accused came to them and enquiredwhether they wanted girls and took Brown inside requesting Barrett towait near the door while he took Brown in. Chief Inspector Perera sawthe third accused in the room in which Brown and a prostitute in a stateof nudity were. Corporal Bowman also saw the third accused in thehouse. Constable Badoordeen saw the third accused speaking to Barrettand Brown and taking Brown in while Barret stood at the door. Thedefence of the third accused was that on the night in question he hadmerely gone to No. 109, Panchikawatte road, to borrow Rs. 6 from thefirst accused. Then the police came-and took him to the police station.The Magistrate convicted the third accused under count 3 of the chargeof assisting in the management of the brothel on the night in question.
Counsel argnes that the conviction of the third accused cannot standbecause the Magistrate allowed- the prosecution to lead inadmissibleevidence against him. The evidence objected to is to the followingeffect:—
(а)Anthonypillai stated that on June 1,1946,i.e. fourteen days previous
to the commission of the offence charged, the third accusedaccosted him on the road and took him to this brothel wherehe contracted venereal disease. When the authorities questionedhim, he took them to the place and pointed out the house.
(б)Constable Sirisena said that he watched this house on March 1 and
March 12, 1946. This evidence was necessary to establish thatthe house was a brothel; but he also stated “ On bothdays …. I saw third accused on the pavement in frontof the house …. I saw third accused speaking tosecond accused. ”
It is submitted that this evidence is inadmissible in that it is evidenceprejudicial to the character of the third accused. It is further arguedthat the third accused having been charged with a specific offencecommitted on a certain day, the fact that he may have committedsimilar offences on two days iD March and on one day in June is inad-missible to prove that he committed the offence with which he is charged.Clearly, that evidence would be inadmissible unless it is admissible undersome provision of the Evidence Ordinance. The evidence of Anthoni-pillai is admissible as part of the narrative as he had come to point out thehouse. It would not be evidence against the third accused unless it isadmissible for that purpose under some other section of the EvidenceOrdinance.
DIAS J.—Rosalin Nona v. Perera (8.1. Police).
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The third accused was charged with assisting in the management ofthis brothel. What is “ assisting ” ? The word is not defined in theOrdinance. The ordinary meaning of the word is “ to help ”, “ to takepart ”, or “ to aid ”. A person who having bought the bank at an“unlawful game”, acts as banker when the game is played, is “ assistingin the conduct of a gaming house ”—Derby v. Bloomfield *.“ To assist
in the management of a brothel ” involves a state of mind in the personassisting. “ To assist in an undertaking ” or “ to assist a person withmoney ”, or “ to assist at a wedding ”—all these acts involve a consentingmind on the part of the person assisting. It involves the mental elementthat the person giving the aid brings a willing mind to bear on the matter.One i -ay, of course, “ assist ” indirectly without a willing mind, as wherea householder by leaving his house for the night “ assists ” the burglarswho break into the premises ; but the context in which that word is usedin section 2 (a) of the Brothels Ordinance connotes that the personassisting does so willingly, voluntarily or with the intention of aiding thebrothel-keeper, e.g. by acting as a pimp.
If that is so, then under section 14 of the Evidence Ordinance, theevidence which is objected to would be admissible. Section 14 providesthat “ facts showing the existence of any state of mind,—such as intention,knowledge, good faith, negligence, rashness, ill-will or good-will towardsany particular person—are relevant, when the existence of any such stateof mind …. is in issue or relevant.” Explanati on 1 tosection 14states that “ a fact relevant as showing the existence of a relevant stateof mind must show that the state of mind exists, not generally, but inreference to the particular matter in question ”. That is to say theprosecution cannot show that the third accused was generally earning hisliving by acting as a pimp, but can show that he was assisting thisparticular brothel by assisting its management by pimping for it. Suchevidence, would in my opinion, be both relevant and admissible. Thisis made clear by the illustration (p) appended to section 14. It reads “ Ais tried for a crime. The fact that he said something indicating anintention to commit that particular crime is relevant. The fact that hesaid something indicating a general disposition to commit crimes of thatclass is irrelevant.”
The construction of section 14 of the Evidence Ordinance came beforea Divisional Bench in R. v. Seneviratne 2. It was held that it is not opento the prosecution to lead evidence to show that the person charged hascommitted other similar offences for the purpose of showing that he isa kind of person who would commit the crime with which he is charged,or of creating a bad impression against him as regards his character orconduct. The evidence of other acts must be relevant to the chargebefore the Court, for example to show his guilty mind or dishonestintention in the offence with which he is charged, when the existence ofsuch state of mind is relevant or in issue. The fact that the admissionof such evidence shows that the accused has committed other crimes doesnot then make it inadmissible. An example of the working of this.rule 1
1 91 Zr. T. 99, 20 Times Rep. 549.8 {1925) 27 N. L. R. 100—See R v. Mendris
{1941) 42 N. L. R. at p. 250.
526
Marambe (Excise Inspector) v. John.
is furnished by It. v. Wickremasinghe 1 whore in a charge of committingan unnatural offence, it was held that evidence of similar acts wastendered not to show a guilty passion between the accused and any ofthe boys or to rebut the suggestion of innocent association, but merelyto show that the accused was likely to have committed the offence withwhich he was charged—such evidence is inadmissible. Similarly, inHerat v. Ran Menika 2 where the charge was of keeping a brothel, evidencethat the accused had been leading immoral lives at a house other thanthat which formed the subject of the charge was held to be inadmissible.
This evidence would also be admissible to rebut a defence which wouldotherwise be open to the third accused, and which he did in fact raise,namely that he innocently blundered into thistransaction—R. v. Peiria * ;Wickremasuriya v. Seryhamy 4. In a summary trial before a Magistratethe prosecution cannot lead rebutting evidence—Welipenna Police v.Pinessa s. Therefore the only opportunity which the prosecution hadof leading this evidence was while the case for the prosecution wasproceeding ; but, of course, great care and caution must be exercisedwhen such evidence is sought to be led. In cases of doubt, in a Magis-trate’s Court, it is best to reject such evidence altogether. In the otherCourts the evidence can be led in rebuttal unless it is clearly admissibleas part of the case for the Crown. In this case no harm has been done,because the defence raised by the third accused makes this evidence alsoadmissible in order to rebut that defence.
The evidence which was objected to was therefore admissible bothas proving the state of mind of the third accused under section 14 of theEvidence Ordinance as well as to rebut the defence set up by him at thetrial.
I affirm his conviction and sentence and dismiss both appeals.
Appeals dismissed.