Jayasinghe V. The Lindula Police

1954 Present: Gratiaen, J.

G. L. JAYASINGHE, Appellant, and
 THE LINDULA POLICE, Respondent.

S. C. 1130-M. C. Hatton, 2105

Criminal Law-Non-disclosure of defence to Police-Inference of guilt.

The failure or refusal of an accused person to disclose his defence to the Police does not justify an inference of guilt, although it may, in any particular case, affect the weight of the evidence which is led in support of it.

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

H. V. Perera, Q.C., with J. G. Thurairatnam and F. Silva, for the accused appellant.

T. A. de S. Wijesundera, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

 February 11,1954. GRATIAEN, J.-

This case has caused me a great deal of anxiety. , The appeal is from a. conviction for the theft on 12th June 1953 of 82 lb. of manufactured tea. from the factory of Melton Estate, Lindula, of which Mr. M. J. Maitland is the Managing Proprietor. The appellant was the estate tea maker and had served Mr. Maitland in that capacity for over 31 years.

 It is common ground that at about 5.50 p.m. on the day in question Mr. Maitland, who was in his bungalow, received an anonymous letter to the following effect:

" Honoured Sir,

  Check the Hoare & Co. van immediately. Urgent. "

"On receipt of this document, Mr. Maitland went up to the factory and saw a van belonging to the firm of engineers concerned whose representatives were at that time engaged in attending to some work in the factory. The van was searched, and there was found in it a sack containing 82 lb. of manufactured tea. I agree with the learned Magistrate that the identity of the tea as tea manufactured in Melton Estate has been established beyond doubt.

Mr. Maitland proceeded with his investigations, and it was brought to light that the author of the anonymous letter was the " learner tea maker " Selladurai who claimed that his suspicions had been aroused when he noticed an estate labourer putting " a bag " into the van at about 3.30 p.m." that afternoon. The labourer concerned was the prosecution witness Sandanam who explained that he had done so on the instructions of the appellant. Sandanam denied, however, that the bag was the same article (containing tea) which Mr. Maitland later discovered in the van. The van-driver also stated that the appellant had requested him to return " a bag of rice " on his account to the firm of David & Co. when the van returned to Talawakelle, the explanation being that David & Co. had sold him a bag of rice which on examination was found to be of poor quality.

The appellant gave evidence on his own behalf admitting the versions of the van-driver and Sandanam to be true. He also called David Silva of Talawakelle who confirmed that he had in fact despatched a bag of rice by Horare & Co.'s van to the appellant earlier in the day. David Silva's evidence on this point was not challenged. The defence was that some enemy of the appellant (possibly Selladurai, the author of the anonymous letter which led to the detection of. the " theft") had caused a sack of tea to be substituted for the rejected " bag of rice " at sometime between 3.30 p.m. and 5.50 p.m. that evening. The appellant protested his innocence and relied strongly on his long and unblemished record of service in a position of responsibility under Mr. Maitland.

The bare possibility of substitution could not be ruled out completely. It is true that the door of the van was found " closed " when Mr. Maitland inspected it, but there was no suggestion that it had been "locked " during the crucial period. It is also a matter of some importance that the sack of tea was discovered in the van more than two hours after Sandanam had placed in it a bag whose contents had not been examined during that long interval of time.

Although Sandanam and the van-driver were vital witnesses for the prosecution, the learned Magistrate seems t

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