Perera V. Inspector Of Police, Galagedera

1955 Present : Weerasooriya, J.

PERERA, Appellant, and INSPECTOR OF POLICE,
GALAGEDERA, Respondent

S. C. 954 of 1953-M. C. Kandy, 18,971

Evidence Ordinance-Section 24-Confession caused by inducement or threat-Burden of proof.

When the question whether a confession had been caused in the circumstances of any inducement, threat or promise referred to in Section 24 of the Evidence Ordinance arises, the Court would have to decide that question on the basis that the burden is on the prosecution to satisfy Court that it was not so caused.

If objection is taken to the admission of a confessional statement it is the duty o of the party who takes the objection to formulate the grounds of objection so that the Court may consider the grounds and adjudicate on them.

APPEAL from a judgment of the Magistrate's Court, Kandy.

Colvin R. de Silva, with L. F. Ekanayake, for the accused-appellant.

N. T. D. Kanakaratne, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

January 24,, 1955; WEERASOORIYA, J.-

In this case learned counsel for the accused strenuously argued that the Magistrate had been under a misconception as regards the burden of proof when he admitted in evidence the document P13. which as held

by him amounted to a confession. In this connection learned counsel pointed out to the observations of the Magistrate, when the question of the admission of the document first arose, which read as follows : " The accused appears to me to be an educated young man and till such time as I can be convinced that the confession was not made perfectly voluntarily without any semblance of inducement, threat or promise held out either by the Superintendent or by the proprietor I will permit evidence on it being led. " Learned counsel submitted that these observations indicate that the Magistrate took the view that the document would be admissible unless he was convinced that it was not a voluntary statement and it had not been the result of any inducement, threat or promise. It seems to me that these observations of the learned Magistrate do indicate that he thought that the burden of proving that the confession was inadmissible was on the defence.

There are several decisions which hold that in regard to a confession which the prosecution seeks to put in the burden is on the prosecution to show that it is an admissible one, vide the cases reported in 7 N. L. R, page 209, 42 N. L. R. page 368 at page 370, and page 553 at pages 556 and 557 ; also 18 Cox's Criminal Cases page 717. In this case when the question of the admissibility of this document first arose, the Court very properly asked defending counsel whether the defence objected to the document. Counsel for the defence was contented to state that he " formally " objected to it, an objection which I have come across on more than one occasion but is the kind of objection which passes my comprehension. If an objection is taken to the admission of a document, I think it is for counsel who takes the objection to formulate the grounds of objection so that the Court may consider the grounds and adjudicate on them. Having regard to the fact that counsel for the defence only " formally " objected to the document but did not formulate the grounds of objection, the burden that rested on the prosecution at that stage to show that the document was admissible could have been regarded as readily discharged, and I do not think it would have been open to counsel for the appellant to have made much of what the learned Magistrate had stated with regard to the admissibility of this document at that stage had nothing further happened, but in the course of the trial the accused gave evidence and made various allegations as to the circumstances in which P13 was obtained from him which it was the duty of the Magistrate to consider, and in the learned Magistrate's judgment when he reverted to the question of the

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