020-NLR-NLR-V-63-THE-QUEEN-v.-WITTE.pdf
SANSONI, J.—The Queen v. Wittie
121
[In the Court of Criminal Appeal]
1960Present: Basnayake, C.J. (President), Sansoni, J.,and H. N. G. Fernando, J.THE QUEEN v. M. WITTIEAppeal 128 with Application 145 of I960
S. C. 36—M. C. Matara, 68214-
Evidence—Confession made by accused to Magistrate—No presumption in lawthat it was voluntarily made—Evidentiary value of a confession—Rightof accused to claim the benefit of any part of it in his favour—Criminal ProcedureCode, s. 134—Evidence Ordinance, ss. 24, 80.
When a confession made to a Magistrate and recorded by him in terms ofsection 134- of the Criminal Procedure Code is led in evidence by the prosecutionwithout objection by the defence, it is wrong to direct the Jury that there is anypresumption that the confession was voluntarily made by the accused.
In the course of his summing-up the Judge told the jury more than once thatthe combined effect of the memorandum of the Magistrate made under section134 of the Criminal Procedure Code and the presumption enacted in section 80of the Evidence Ordinance was to place a burden on the accused to show thatthe confession was not voluntary.
Held, that there was misdirection on the law. Section 134 of the CriminalProcedure Code forbids a Magistrate to record a confession unless he has reasonto believe that it was made voluntarily. But the question whether the makingof it appears to have been caused by any inducement, threat or promise of thesort described in section 24 of the Evidence Ordinance was for the jury to decide,unhampered by any presumptions and assisted by proper directions from theJudge.
When the prosecution leads in evidence the confession made by anaccused, it becomes evidence for the accused as well as against him, though theJury may attach different degrees of credit to the different parts. It would bemisdirection to tell the Jury that they should not give the accused the benefitof any part of the confession which contains mitigatory or exculpatory matter.
-A-PPEAXi against a conviction in a trial before the Supreme Court.
O.E. Chitty, Q.C., with D. L M. Abeysekera, E. B. Vannitamby and
Nagendra (Assigned), for Accused-Appellant.
A. C. M. Ameer, Deputy Solicitor-General, for the Crown.
Cur. adv. mill.
September 27, 1960. Sansoni, J.—
The accused was indicted with the murder of one Jinadasa on 10thJune, 1959, at Kamburugamuwa. He was convicted of that offence bya divided verdict of 6 to 1, the Jury adding a recommendation for mercyin view of a money transaction which the accused had with Jinadasa.
6—Lira
2J. N. R 10131—2.033 (9/61)
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SAN’S ONT, J.—The Queen v. Wiltie
The two men had been working under K. W. D. de Silva, and thoughthey had left the service of de Silva some time before Jinadasa met hisdeath, they used to meet often at de Silva’s house where Jinadasa used togo every evening in order to light a Petromax lamp.
On the evening of 10th June, both men went to that house. Accordingto the accused he left the house along with Jinadasa, while according to aprosecution witness he left earlier than Jinadasa. As to what happenedthereafter, the prosecution was able to lead the evidence of onlyone witness named Jayatilleke, who said that when he was passing thegate at the entrance to de Silva’s premises he saw the accused and Jinadasahaving a discussion. He heard the accused saying, “Will you give mymoney or not ? ” He did not hear any reply nor did he see anythinghappen thereafter. The prosecution also relied on the dying declarationmade by Jinadasa to the Apothecary at the Government Hospital, Matara,that night on being admitted to the hospital with head injuries. Jinadasatold him that “ Wittie ” (the accused) hit him with a club. There wasnothing in the evidence to indicate that there was any previous enmitybetween Jinadasa and the accused.
The accused surrendered to the Headman of Kamburugamuwa at10.30 a.m. on the following day. The Headman took him to the sceneand handed him over to Inspector Amarasinghe who was holding an in-quiry into the offence. After making a statement to InspectorAmarasinghe, the accused is said to have taken him to a culvert which isabout 60 yards from de Silva’s house and produced an iron rod whichwas submerged in about 8 inches of water.
At 12.15 p.m. that afternoon the accused was produced by the Policebefore the Magistrate of Matara in open Court. The Magistrate put himin the custody of a Fiscal’s Officer, who kept the accused in the Court celluntil 2 p.m. At 2 p.m. the accused was kept in the Magistrate’sChambers, also in Fiscal’s custody, and at 3.15 p.m. the Magistraterecorded the accused’s statement. The statement is as follows :
“ I know deceased H. R. Jinadasa. I gave him a loan of Rs. 500before New Year of this year. Yesterday at about 6.30 p.m., I wentto the house of Liyana-mahattaya—K. W. D. de Silva. When I wasthere deceased Jinadasa came there. Both deceased and I work forthis Liyana-mahattaya. The deceased lighted the lamps in this house.After this the deceased and I came to the main road. The deceasedwas pushing a cycle. Then I told the deceased, “ I am now un-employed ; as such return my Rs. 500. ” Then he uttered, “ Yakko,are you in such haste to get the money ? ’ ’ and struck a blow with hisfist on my temple. Then I told him, “ Having lent you money shouldI get assaulted ? ” Then he gave me two more blows—rone on the napeof my neck and another on my head. After giving me blows he wasgoing'. Then I looked round and I saw an iron rod planted near a plan– tain bush in Liyana-mahattaya’s land. I took this iron rod and gavethe deceased three blows. Shown an iron rod, this is the rod. (I mark
SANSONT, J.—The Queen v. Wittie
128
it PI) J left the rod near the culvert close to scene of assault andwent away. I came to Matara. I came to Matara and roamed about.Then I went to Kamburugamuwa and surrendered to the V. H. AfterX was taken to the scene, I showed this rod to the Police. The Policecould not have seen this rod and I put it into a water poolby the culvert. **
Before recording it the Magistrate explained to the accused that hewas not bound to make a statement, but if he made one it would be re-corded and may thereafter be used against him as evidence. He alsoasked the accused whether of his own free will he wished to make a state-ment and the accused said, “ I am making a statement of my own freewill and no one has requested me to make a statement. ” He was askedwhether the Police induced him to make a statement and he answered“ No ”. He also said, “ I am speaking to what took place. There isno need to suppress it. ”
The accused gave evidence on his own behalf at the trial. He explainedthat he had met the deceased on the 1st June, and had asked him to returnthe Rs. 500. The deceased had then asked him to come to de Silva’shouse that evening. The two of them left the house together, and at thegate when the deceased got on to the bicycle the accused asked him forhis money. The deceased then abused him addressing him as “ Yakko”and struck him on his left temple. The accused said that he was takenaback by this because they had been good friends until then. When heprotested, he was struck two or three more blows, and the deceased threat-ened to kill him and put his body into the tank. The accused said hewas then held by his throat, but he released himself and picked up a pieceof stick and struck the deceased some blows with that. He said he didthat through fear. He denied that he used an iron rod, or that he struckthe deceased when the latter was going away. He said that he was pro-voked by the language which the deceased used towards him. Headmitted that he picked up an iron rod from a drain when the PoliceOfficers asked him to look in the drain and pick it up. He said thathe made the statement he did to the Magistrate, because the Headman andthe Police asked him to make it in that way.
Several objections were taken by Mr. Chitty when he came to deal withthe summing-up, particularly to the learned Judge’s directions on the law,but it is not necessary to refer to more than two.
At the commencement of the trial, the accused’s proctor informed theCourt that he was not objecting to the production of the accused’s con-fession. This meant that the confession could properly be led in evidencewithout any preliminary inquiry as to whether it was admissible or not.But it did not mean that the defence conceded that the confession waseither voluntary or true. In the course of his summing-up the learnedJudge told the jury more than once that the combined effect of thememorandum of the Magistrate made under section 134 of the CriminalProcedure Code and the presumption enacted in section 80 of the Evidence
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SAN’S ONI, J.—The Queen v. Wittie
Ordinance was to place a burden on the accused to show that theconfession was voluntarily made. One passage from the summing-upreads :
“ So the law says, that where a responsible officer like a Magistratehas taken down a statement and has appended his certificate, you shallpresume that the circumstances mentioned by him are true, namely,that the admission was made voluntarily. Now when the law saysthat you shall presume, it means that you must regard such fact asproved unless and until it is disproved. Now when you are faced withthis question ‘ Was this statement made voluntarily ? ’ the law saysthat you must presume that it was made voluntarily unless and untilupon the evidence[given by the accused that presumption is displaced ;in other words, it is disproved …. it is entirely a question offact for you tc decide, whether the presumption that the statement wasmade voluntarily has been displaced by the evidence of the accused. ”
In our view, this is not the law. Section 134 of the Code forbids aMagistrate to record a confession unless he has reason to believethat it was made voluntarily. But the question whether the making ofit appears to have been caused by any inducement, threat or promiseof the sort described in section 24 of the Evidence Ordinance was for thejury to decide, unhampered by any presumptions and assisted by properdirections from the Judge. Section 80 of the Evidence Ordinance reads ;
“ Whenever any document is produced before any Court, purportingto be a record or memorandum of the evidence or of any part of theevidence given by a witness in a judicial proceeding or before any officerauthorized by law to take such evidence, or to be a statement or confes-sion by any prisoner or accused person, taken in accordance with law,and purporting to be signed by any Judge or Magistrate, or by anysuch officer as aforesaid, the Court shall presume—(1) that the docu-ment is genuine ; (2) that any statements as to the circumstances underwhich it was taken, purporting to be made by the person signing it,are true, and (3) that such evidence, statement, or confession was dulytaken. ”
This section merely creates a presumption of genuineness with regard todocuments taken in the course of a judicial proceeding, and embodies themaxim omnia praesrumurdur rite esse acta. The presumption is that allthe necessary formalities purporting to have been performed have, infact, been performed. The section says nothing and implies nothing aboutthe voluntary or the truthful nature of the contents of the document. Itwas, therefore, wrong to direct the Jury that there was any presumptionthat the confession was voluntary. In view of this direction of thelearned Judge the jury, even if they had reason to doubt the free andvoluntary nature of the confession, might have thought that they werebound to act upon it because the accused had not displaced thepresumption that it was voluntary.
SANSOM, J.—The Queen v. Wit tie
Another direction which the learned Judge gave the Jury with regardto the confession was as to the evidentiary value they might attach toit. In dealing with that matter he said :
“ Gentlemen, we now come to an important principle of law. Notonly in the courts of criminal jurisdiction but also in other courts youfind two parties, so to speak, in litigation. One party asserts one thing,the opposite party asserts a different thing. The party that has toprove its case says, ‘ These are the facts. * In those cases by long ex-perience it has been found that if A is litigating against B, an admis-sion made by B, in regard to the existence of a fact relied on by A, canbe taken as sound proof that what A says is true. In this case the pro-secution says that the accused is prima facie guilty of murder becausehe must have had the murderous intention because he used a dangerousweapon. The prosecution says, “I will prove it through your mouth.You said to the Magistrate that you used an iron rod. ” There-fore when a statement like this is produced, the entire statement is, nodoubt, put before you, but the prosecution is entitled to draw from thatthe admission of any fact favourable to the prosecution. I will giveyou a hypothetical case. Suppose a man is found dead with stabinjuries on the road and shortly afterwards a man is arrested with aknife, with his clothes bloodstained. He tells the Police Officer whoarrests him, “ Take me to a Magistrate ; I want to make a statement, ”and he tells the Magistrate, “ When I was walking along the road thisdead man came up to me and attempted to rob me on the highwaybetween sunset and sunrise and I stabbed him and killed him. ” Nowthe prosecution can bring that statement to a jury and tell a jury, “ HereI have proved what the law requires me to prove. I rely on this man’sadmission that he stabbed and killed that man who was found lying onthe road. ” But in answer to that can the accused merely from thedock say, “ Yes, but look at that statement fully. I should be acquittedbecause I said in that statement that I had to kill him because I wasabout to be robbed ” ? The law does not allow that. Why ? Becausethat is a statement made in his own favour. But in that hypo-thetical case the accused can get into the witness-box and say, ** Thisis what happened. Believe me because I give my evidence on oath,and what is more, as soon as I was taken to the Magistrate I gave mydefence. ” So that ultimately if circumstances of exculpation or miti-gation are to be established, then that has to be through the mouth ofthe accused in the witness-box, and of course it must be believed. ”
In effect, therefore, the learned Judge directed the Jury that althoughthe prosecution relied on the accused’s confession as part of its case, theywere not to give the accused the benefit of any part of that con-fession which contained mitigatory or exculpatory matter.
In our view this is not a correct direction on the law. The confessionled in evidence by the prosecution must be taken and considered as a whole,and the accused is entitled to claim the benefit of any part of it in his
2*J. X. B. 19131 (9/61)
126
Times of Ceylon Ltd. v. Nidahas
Kxtrmika. Saha Velanda Seva lea Vurthiya Samitiya
favour. In The King v. Edwin1 and in The King v. Sathasivam2, it waspointed out that where the prosecution leads in evidence the confessionmade by an accused, it becomes evidence for the accused as well as againsthim, though the Jury may attach different degrees of credit to thedifferent parts. In view of the learned trial Judge’s direction to the Jury,the accused was deprived of the benefit of that part of his confession whichset out how he came to strike the deceased. This would have caused graveprejudice to him in his defence, and the prejudice was all the greater inthis case where the accused alone was able to speak to the circumstancesunder which he struck the deceased man.
Mr. Chitty submitted that if the jury had been properly directed by thelearned trial Judge they might well have convicted the accused notof murder but of culpable homicide not amounting to murder. Weaccept this submission.
We accordingly substitute for the verdict of murder a verdict ofculpable homicide not amounting to murder, and substitute for the sentencepassed on the prisoner a sentence of ten years’ rigorous imprisonment.
Verdict altered.