131-NLR-NLR-V-54-THE-QUEEN-v.-M.-SATHASIVAM.pdf
The Queen v. Sathasivam
54 r
[Assize Court]
1953Present : Gratiaen J.
THE QUEEN v. M, SATHASIVAMS. C. No. 1, Western Circuit—M. C. Colombo South, 38,682
Criminal Procedure Code—Section 233—^Meaning of words “ all statements ”No 6
limited to unsworn statements—Sections 160, 161 (1).
By section 233 of the Criminal Procedure Code, “ All statements of the accused!recorded in the course of the inquiry in the Magistrate’s Court shall be putin and read in evidence before the close of the case for the prosecution
Held, that the words “ all statements ” cover not only the prisoner’s statutoryunsworn statements made in terms of section 160 of the Criminal ProcedureCode, but also the whole of the sworn testimony which he gave at the inquiryby virtue of the provisions of section 161. It is not open to the prosecutionto read in evidence merely selected extracts from the deposition of the accused,
fvULING on the admissibility of certain evidence tendered by theCrcwvn in a trial before the Supreme Court.
T. S. Fernando, Acting Solicitor-General, with Douglas Jansze, AnandaPereira and Vincent Thamotheram, Crown Counsel, for the Crown.
Colvin R. de Silva, -with T. W. Rajaratnam and Ananda de Silva, forthe accused.
Cur., adv. vult-
542
GRATXAEN J.—The Queen v. Sathasivam
March 24, 1953. Gbatxaek J.—«
In this ease the prisoner is on his trial for murder. The learnedSolicitor-General has invited me, before he addresses the Jury, to give& ruling upon a submission raised by the defence as to certain items ofevidence on which the Crown seeks to rely as part of its case. Althoughit is generally regarded as undesirable to decide such questions in advance,learned Counsel agree, and I am satisfied, that this procedure would bemore convenient in the present case.
After the prosecution witnesses had been examined at the non-summaryinquiry held under Chapter 16 of the Criminal Procedure Code, thecharge was read out to the prisoner and he was informed, under theprovisions of sec. 159, of his right to give evidence if he so desired on bigown behalf. The statutory caution prescribed by sec. 160 was thenadministered, and the prisoner made a brief statement from the dockprotesting his innocence in the following words :—
“ I am not guilty. ”
That statement will in due course be read in evidence at this trial asrequired by sec. 233.
After due compliance with the provisions of sec. 160, the learnedMagistrate proceeded to ask the prisoner, in terms of sec. 161 (1), whetherinter alia he desired to give evidence on his own behalf. The prisonerelected to do so ; he gave evidence on affirmation ; he was cross-examinedat some considerable length by Counsel appearing for his (then) co-accusedand to a lesser extent by Crown Counsel; and he was then re-examined.The whole of his deposition now appears as item 143 in the list ofdocuments annexed to the indictment.
The learned Solicitor-General states that the Crown does not now desireto read in evidence the prisoner’s deposition in its entirety. The Crownproposes, instead, to prove and to rely on a number of extracts selectedfrom the deposition and containing, so it is stated, admissions which tosome extent support the case for the prosecution. Dr. de Silva objectsto this proposed procedure, and contends that,' whether or not the prisonerelects to give evidence at the trial, it is the duty of the Crown to lead inevidence his entire deposition which was recorded by the committingMagistrate. He relies on sec. 233 of the Code which is in the following•terms :—
“ All statements of the accused recorded in the course of the inquiry
in the Magistrate’s Court shall be put in and read in evidence before
the close of the case for the prosecution. ”
t
The defence rlft.ims as of right that sec. 233 must be applied to the wholeof the deposition, and it has been argued that the words “ all statements ”cover not only the prisoner’s statutory unsworn statement made in termsof secs. 160 and 161, but also the sworn testimony which he had given■at the inquiry in the exercise of the privilege conferred for the first timeon accused persons when the Code was amended by sec. 8 of Ordinance
GftATXAEN J.—The Queen v. Sathasivam
543
13 of 1938. The Solicitor-General submits, on the other hand, that inthis context the word “ statement ” must be construed as having beenused in contradistinction to “ testimony ” given on oath or affirmation.
As far as our combined researches go, there are no reported decisionsof this Court or of the Court of Criminal Appeal to guide me in arrivingat a decision on this point, but it has been brought to my notice that on25th May, 1949, in S. C. No. 3/M. C. Colombo 13,273, which came up fortrial at the Assizes, Windham J. ruled in precisely similar circumstancesthat the deposition of the prisoner recorded in the lower Court camewithin the ambit of sec. 233. He accordingly directed that the depositionshould be read in evidence at the trial notwithstanding objection by theCrown. Unfortunately, the reasons for Windham J.’s decision are notavailable to me. I have also consulted one of my brother Judges whorecollects that, shortly after the amending Ordinance of 1938 was enacted,Soertsz J. had given a similar ruling at the Assizes, but here again hisorder cannot be traced. Having given my best consideration to theproblem on the footing that the question is not expressly covered byauthority, I have myself come to the same conclusion.
It will be helpful to trace the historical development of Chapter 16of the present Code since it was first enacted as Ordinance No. 15 of 1898.It originally provided that an accused person should, at the commence-ment of the non-summary proceedings, be informed of the nature of thecharge against him, and that he should be given the opportunity at thatstage of making a statutory statement—sec. 155 (1). It then imposedon the Magistrate, if a prima jade case of guilt had been established by theevidence for the prosecution, the duty of questioning the accused so asto enable him to explain any circumstances which had been provedagainst him—secs. 156 (3), 295 and 302. The accused was also permittedto call witnesses in support of his defence, but he was precluded fromgiving evidence at any stage of the inquiry on oath or affirmation on hisown behalf—P. C. Kalutara 7620 (1899) Koch’s Reports 52.
This part of the Code was substantially altered in many respects byOrdinance 13 of 1938. The amendments which are relevant to the presentproblem are to the following effect :—
Section 155 (1) in its original form was repealed, and a newsection was enacted requiring the Magistrate, at the commencementof the inquiry, merely to inform the accused person of the nature ofthe charge against him, but not to record at that stage any statementwhieh might be made in reply thereto.
The procedure of interrogation prescribed by sec. 156 (3), 295and 302, were entirely swept away. Instead
* (3) The new sections numbered 159, 160 .and 161 permitted theaccused, after the evidence for the prosecution had been led, to make astatutory statement under sec. 160 (1) and also, if he so desired, to giveevidence on his own behalf (sec. 161).
Notwithstanding the fundamental alteration in the form of theproceedings, sec. 233 of the Code was retained in its original form. It
544
G RATI ANT J.—The Queen v. Sathasivnm
still requires, therefore, that “ all statements ” of the accused recordedin the Magistrate’s Court “ shall ” be put in and read in evidence beforethe close of the case for the prosecution.
Before the Code was amended in 1938, the word “ statement ” inthe context in which it appeared clearly had no application to statementsmade on oath or affirmation, because, as I have pointed out, an accusedperson was at that time precluded from giving evidence in his defenceat the inquiry. The plurality of “ statements ” contemplated in theearlier procedure was at that time confined to the original statutory state-ment made under sec. 155 and to other statements subsequently madeby the accused person under interrogation by the Magistrate.
What, then, are “ all ” the accused’s “ statements ” which the Legis-lature had in contemplation when it altered the procedure so substantiallyin 1938 but nevertheless retained the imperative provisions of sec. 233-in their original form ? Admittedly, the second category of unswornstatements made under interrogation by the Magistrate has been sweptaway. There still remain, of course, the statutory statement (in anamended form) made under sec. 160 and the further statements madeunder seec. 165 in which the accused merely communicates, at the timeof his commitment, the names of the witnesses whom he desires to callat the trial. Soertsz J. has suggested obiter in The King v. PunchiMahatma/ya 1 that sec. 233 also applies to any later unsworn statementwhich an accused person may, at a later stage of the inquiry, choose tomake in order to supplement or vary his original statutory statement.With respect, I agree that although the Code makes no express provisionfor the recording of such statutory statements after the stage fixed bysee. 160 has passed, it is manifestly fair that statements of that kindshould not be withheld from the Jury at the trial. To this extent, therules of essential justice may legitimately be permitted to overridethose of strict interpretation.
The question is whether the application of sec. 233 must be limitedto unsworn statements of the kind which I have previously enumerated.It must be observed in this connection that the section is obligatory,and that it contains words of the utmost generality which are sufficientlywide to cover an accused person’s deposition because :
(а)each statement contained in the deposition cannot be said to
have lost the character of a “ statement ” merely because ofthe oath or affirmation which preceded it ;
(б)it has been “ recorded in the course of the inquiry at the Magistrate’s
Court ” as required by the amended Code.
<
I can discover no logical or convincing answer to the question why thescope of these words of generality should be given a meaning so restrictedas to require the compulsory reception in evidence of a prisoner’s unswornstatement at the subsequent trial but to exclude altogether from theJury statements which have the additional sanctity of the oath or affir-mation which precedes it. The privilege of giving sworn evidence at
1 {1942) 44 N. L. B. 80.
GirtATXAEIST J.—The Queen v. Sathasivam
545
tbp Magisterial inquiry has advisedly been substituted for the earlier:'and less agreeable experience, whether he liked it or not, of making un-sworn statements in reply to questions put to him by the interrogatingMagistrate. If the latter statements were required by law to be placedbefore the Jury, I see no reason in principle why so illogical an intentionas to exclude the former must be ascribed to the legislature.
The advantages to be derived from the comparatively recent privilegeof giving evidence at the inquiry, the risks which a man necessarilyundertakes in electing to exercise it, and in particular his voluntarysubmission to the ordeal of cross-examination before the actual trialhas commenced, would be reduced to little more than a mockery if theywere merely to give the Crown an opportunity : *
to discover evidence which would contradict any part of his evidence
which it does not accept as true, and
to select from the deposition certain passages containing admissions
tending, if isolated from their context, to support the case forthe prosecution.
I well appreciate that if an accused person does not testify on his ownbehalf at his trial, the reception of his earlier deposition may not strictlyconstitute positive proof of any exculpatory facts asserted in the docu-ment. But this argument applies with even greater force to the unswornstatements recorded under section 160 (1). In either event, the weightwhich the Jury may attach to any statement, sworn or unsworn, is amatter upon which they must in due course receive proper directionsand assistance from the presiding Judge. In one case, for instance, astatement of either kind might well be found to militate against thedefence if the Crown can disprove at the trial the truth of whatthe prisoner has stated to the Magistrate. In another case, the value ofthe defence which he ultimately puts forward at the trial might, subjectto the limitations indicated in Rex v. Naylor x, legitimately be regardedas weakened by his failure to disclose it on the earlier occasion. Rex v.Littleboy 2. But in yet another case, the circumstance that the prisonerhad, at the first opportunity provided by our procedure, voluntarilygiven an explanation of his conduct and persisted in it thereafter mayvery properly be reckoned in his favour. In other words, sec. 233 isenacted “ in the interests as much of innocent persons as in the interestsof justice against guilty persons ”—Rex v. Leckey 3.
I hold that it is always the duty of the Crown to put in the whole ofthe prisoner’s deposition in terms of sec. 233—subject, of course, to anydirections which the presiding judge may give for the exclusion of anyportions which are irrelevant or inadmissible. Phipson on Evidence(8th^Ed.) 234. In the present case the prisoner desires that this pro-cedure should be followed, but my ruling would have been the same evenif he did not. I must not be understood, of course, to mean that everypart of the deposition would form part of the case for the Crown. Butit is material which the law requires to be placed before the jury for thepurpose of arriving at their verdict in the case.
1 (1933) 1 K. B. 685.2 (1934) 2 K. B. 408.
(1944) K. B. 84.
546
Abraham Singho v. Qunaward&na,
In England the prosecution, though not compelled to do so, invariablyleads evidence of all statements, exculpatory or incriminatory, whichthe prisoner has made to a police officer after heing cautioned inaccordance with the'Judges’ Rules. That procedure cannot he adoptedin this country owing to certain restrictions imposed by the provisionsof our Evidence Ordinance and, perhaps, of Chapter 12 of the CriminalProcedure Code. Having regard to these restrictions, it is all the moredesirable that an accused person should not be discouraged from offering,either by sworn evidence or in the form of an unsworn statement, anexplanation of his conduct at the earliest point of time which the lawpermits under the existing procedure. And when that opportunity hasbeen voluntarily taken, justice requires, and sec. 233 insists, that thewhole of his explanation should be brought to the notice of the jury whoare empanelled to try him.
Objection as to admissibility of certain evidence upheld.