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Deokinanan v R

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On October 15, 1963, the appellant with three other men went up the river in their employer’s launch to buy timber. One of the men had on him $5,000 and 1,000 guilders for the purchase. On October 24, the appellant returned to his employer and told

[1969] 1 A.C. 20 Page 21

him that there had been an explosion and that he had found himself in the water and the others were missing. On october 26 the bodies of the other three men were found floating in the river with severe wounds. When the missing boat was found there was no sign of any explosion or collision; the anchor and chain and cutlasses were missing. The appellant was arrested and put in prison. At his trial for murder evidence was given by B, his trusted friend that he (B) had seen the appellant on November 6, 1963, in the waiting room of the prison, having gone to him at the request of the appellant’s brother; that the appellant had admitted to B that he had hidden the money; that B promised to help to recover the money, intending to tell the police any further information the appellant might give him; that a police constable having given certain instructions, B was placed in a lockup in the police station, though not charged with any offence, in the hope that he would get information from the appellant and communicate it to the police; and that the appellant and B were alone together in the cell for one hour and the appellant told B how he had murdered one of the other three men. On the next day the money was recovered from the exact spot mentioned by the appellant. The appellant was convicted. He appealed on the ground that B’s evidence was inadmissible. The appeal was dismissed.

On appeal:-

Held, dismissing the appeal, (1) that the evidence showed that the same atmosphere and relationship which obtained at the first interview prevailed at the subsequent interview in that the appellant continued to regard B as his trusted friend, and that the questions B asked were not tied to or hinged on any promises and there was no compulsion on the appellant to confess to the murder, B never having promised to assist only if he was told; and that, accordingly, the prosecution had established at the trial that the confession was not induced by any promise or hope of advantage held out to the appellant and was free and voluntary (post, p. 30F-G).

(2) That the appellant thought that B was his trusted friend, that at the time of the confession B was no more than a possible witness for the prosecution and the mere fact that a person might be a witness for the prosecution did not make him a person in authority, and that, accordingly, the confession had not been obtained from the appellant either by fear of prejudice or hope of advantage exercised or held out by a person in authority and was admissible (post, pp. 30G – 31A, E).

Reg. v. Thompson [1893] 2 Q.B. 12; 9 T.L.R. 435; Ibrahim v. The King [1914] A.C. 599; 30 T.L.R. 383, P.C. and Reg. v. Wilson (David); Reg. v. Marshall-Graham [1967] 2 Q.B. 406; [1967] 2 W.L.R. 1094; [1967] 1 All E.R. 797, C.A. applied.

Dictum of Bain J. in Rex v. Todd (1901) 13 Man.L.R. 364, 376 approved.

Judgment of the Court of Appeal, Guyana, affirmed.

[1969] 1 A.C. 20 Page 22

APPEAL No. 19 of 1967 by special leave to appeal in forma pauperis (May 24, 1967) from the judgment (December 20, 1966) of the Court of Appeal of the Supreme Court of Guyana (Stoby C. and Luckhoo J.A., Cummings J.A. dissenting) dismissing the appeal of the appellant, Deokinanan,against his conviction (November 23, 1965) for murder and sentence of death passed on him by the Supreme Court of British Guiana (criminal jurisdiction) (Persaud J. and a jury).

The facts are stated in the judgment of their Lordships.



1968 January 30, 31, February 1. T. O. Kellock Q.C. and Louis Blom-Cooper for the appellant. First, the trial judge in deciding whether the confession was made voluntarily erred in law in taking into consideration whether or not the statement was true. The rule of law is clear that any promise made to induce a statement by an accused after he has been charged makes that statement inadmissible in evidence against the accused. B had induced the appellant to believe that he, (B), was in a position to help him. There was no evidence that the appellant asked B to see him the second time. One must look at it from the point of view of the accused subjectively. Did he see a hopeful advantage held out to him by B? Two promises were made by B, first, that he would find out the prosecution evidence, and secondly, that he would find the money and hand it to the appellant’s father with the express purpose that the money would be used to suborn the prosecution witnesses. Both these stages were vital to enable the appellant to escape from the prosecution. It was on the strength of those promises and inducements that B asked the appellant the vital question “how the bodies got chopped?”

1968, March 25. The reasons for the report of their Lordships was delivered by VlSCOUNT DILHORNE.

On November 23, 1965, the appellant was convicted of the murder of Motie Singh after trial by jury in the Supreme Court of British Guiana.

He appealed to the Court of Appeal of Guyana which by a majority (Stoby C. and Luckhoo J.A., Cummings J.A. dissenting) dismissed the appeal. Now by special leave of the Judicial Committee, he appeals to the Privy Council.

At the trial evidence was given that on october 15, 1963, the appellant, Motie Singh and two men named Heera and Dindial had gone up the River Corentyne in a launch belonging to one Raghubar to buy timber for Raghubar’s sawmill at Crabwood Creek near the mouth of the river. Before they left Raghubar gave Motie Singh $2,000 and on October 22, at Acabor about 150 miles up river he gave Motie Singh a further $3,000 and 1,000 Dutch guilders for the purchase of timber.

On October 24, at about 6.30 a.m., the appellant came on foot to Claude Chung’s camp at Sunrop and asked to be taken down to Crabwood Creek. He told Chung that he and three others were coming down the river the previous night in Raghubar’s launch when they met with an accident. He told Chung that “a boat had jammed theirs up the river in the centre of the river between Powis Island and the Dutch shore”: that he could not say much of what really happened because he and two others were sleeping and the other was steering: “and suddenly he felt a bounce

  • Footnote 9     [1967] 1 A.C. 760.
  • Footnote 10     4 C. & P. 221, 223.
  • Footnote 11     (1852) 2 Den. 522, 526.
  • Footnote 12     (1852) 2 Den. 430, 444.
  • Footnote 13     (1901) Man.L.R. 364, 368, 373, 375-378.
  • Footnote 14     (1946) 86 Can.C.C. 9, 10. 13; [1946] 1 W.W.R. 328.
[1969] 1 A.C. 20 Page 26

on the launch and found himself in the water” and that when he came to the surface he saw a big boat make two circles in the river and then go away.

The appellant got a lift in a canoe which was going downstream, and in the course of the journey he told one of the men in the boat about the accident. He did not tell him that there had been a collision.

The same day he reported to Raghubar at Crabwood Creek. He told him that when the launch was in front of Maam Island there had been an explosion and he had found himself in the water. He said that he had not seen any vessel in the vicinity.

The appellant was then taken to the police station where he made a statement. He did not then say there had been an explosion but that he had felt an impact and had heard the beating of an engine but could not say what the launch had collided with.

A search was made. At 4 a.m. the next day, October 25, the search party, which consisted of the appellant, two policemen and Raghubar, were by Maam Island when the appellant pointed to a place in the river and said “This is the spot.” Nothing was found there.

On 26 October, the body of Dindial was found floating in the river by Ann’s Creek about 25 miles up river from Maam Island, and the bodies of Heera and Motie Singh were found floating in the river at Cow Landing about five miles from Ann’s Creek. All three had wounds caused by a sharp cutting instrument. Motie Singh had a severe wound in his neck and he and Heera had had their stomachs cut open.

The bodies were put in a boat belonging to one Balchand, a logger, and the boat was towed by a launch down to Crabwood Creek. Balchand, who said that in 1963 he was a great friend of the appellant, travelled in the launch with the appellant and others. On the way down the appellant said that he would like to speak to Balchand but P.C. Ramjattan would not allow him to do so.

On October 28 the missing boat was found, sunk near Powis Island. It was brought to the surface. There was no sign of an explosion or collision. Cutlasses which had been on board were missing; so was the anchor and chain. The sea cork had been taken out and there was no doubt that the launch had been deliberately sunk.

The appellant was arrested and taken to the New Amsterdam Prison.

[1969] 1 A.C. 20 Page 27

On November 3, a brother of the appellant, called “Preacher,” spoke to Balchand, and as a result Balchand went to the prison to see the appellant on November 6. The appellant was brought to the waiting room and Balchand’s account of what happened was as follows:

“Accused said to me, ‘Bal man, ah glad you come, I want to see you very important.’ I asked him what was it all about so important. He said that he wanted me to help him because he knew I had an engine and a boat. I asked him what I could do to help him. He said that he got the money in Powis Island, and he wanted me to go to the island.

“The prison officer was patrolling behind the accused and he changed the conversation. In the presence of the accused, the prison officer said that the time was up. I then left the prison.”

Balchand also said that on this occasion he had told the appellant that he would try his best to assist him by going for the money. It was, he said, his intention to tell the police any information he got from the appellant.

Mr. Kellock for the appellant did not contend that what the appellant had said to Balchand on this occasion was inadmissible in evidence. Balchand’s promise to help by going for the money was not given expressly or impliedly on condition that the appellant told him what had happened. The appellant’s admission that he got the money showed that his stories of an accident were not true.

On November 7, Balchand went to the magistrates’ court and saw P.C. Ramjattan. He said that Ramjattan gave him certain instructions but what they were, he was not, nor was Ramjattan, asked to say.

On November 12 Balchand went to Whim police station. After speaking to Sergeant Barker, he was placed in the lockup though not charged with any offence. He was put there in the hope that he would get information from the appellant and communicate it to the police. Cummings J.A., in his dissenting judgment, expressed the view that he had been placed there by the police, with knowledge on the part of the police, that he would hold out an inducement to the appellant to confess. There is nothing in the record to justify the conclusion that he was instructed by the police to hold out any inducement to the appellant. Indeed, it seems somewhat unlikely that the police would take a step which might render any information obtained from the appellant inadmissible in evidence.

At about 1 p.m. the appellant was brought to the station and

[1969] 1 A.C. 20 Page 28

placed in the cell with Balchand. They were alone together for about an hour. Balchand’s account of what happened is as follows:

“In the lockups at Whim, accused told me ‘Man Bal, what you ah doing here, you got the money.’ I told him that I did not get the money as I did not have proper directions. He told me that as we were together, he would tell me the correct spot where the money was. He told me to go to Powis Island – the head of the island, and ‘go in 25 rods from the head of the island, and must go and search for a mora tree about 5 to 6 inches thick shaven on the trunk with a cutlass, and with a vine tied with some young mora leaves around the trunk, and from the tree you must go 6 rods low side, and you will see a large big mora tree with some spurs around and some old tacooba longside the large mora tree, and dig under the mora tree root 6 inches and you will see the money there.’ He said that I must take $1,000 for myself, and give his father-in-law the balance of the money. He also told me to tell his father-in-law that he must not forget the buck men who had seen him running in the island. I promised him that I will do that.

“I asked him how the money got missing. He said whilst they were coming on the river, ‘We slipped out the money and hide it in the launch.’ I asked him how the bodies got chopped. He told me that Dindial caused the whole trouble. He said that while they were coming, Motie Singh and Heera wanted to go to the Dutch police station to report the loss of the money; that Heera and Dindial had an argument, and Dindial told Heera to stop the launch; that Heera said ‘no man, abee a go report the matter at the Dutch police station.’ That while arguing Dindial picked up a cutlass, gave Heera several chops. He said that Motie Singh went to assist Heera, and he (the accused) picked up his cutlass, and chopped Motie Singh on his neck; and the two of them decide to burst the belly of the men, to tie them and sink them with the boat anchor.

“I told the accused that I would try and assist to get the money.”

After the conversation Balchand told the appellant that he was in the lockup on a warrant for a fine. This was untrue.

When Balchand left the lockup, he spoke to Superintendent Soobrian and the next day he went with police officers to Powis Island where the money, amounting to $4,780 and 1,000 Dutch guilders, were found hidden exactly as the appellant had said.

Counsel at the trial objected to the admission in evidence of the statements made by the appellant to Balchand at Whim police station on the ground that they were induced by a promise to help the accused held out by a witness with the knowledge and consent of a person in authority, that is to say, Sergeant Barker, and were

[1969] 1 A.C. 20 Page 29

not made voluntarily. The trial judge ruled that the evidence was admissible. The question to be decided in this appeal is whether he was right to do so.

In Ibrahim v. The King1 Lord Sumner said2:

“It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.”

In Reg. v. Thompson3 Cave J. said4:

“If it” (the confession) “proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible.”

In Reg. v. Harz; Reg. v. Power,5 decided in the House of Lords on the same day as judgment was given in the Court of Appeal in this case, the accused had been told that if questions put to him were not answered, he would be prosecuted for failing to answer them, and the question for decision was whether the answers given were admissible in evidence on his trial for conspiracy to cheat and defraud the Commissioners of Customs and Excise. It was argued that as the threat did not relate to the charge or contemplated charge against the accused, it was admissible.

Lord Reid, with whom the other noble Lords agreed, was of the opinion6 that the admissibility of a statement induced by a threat did not depend on whether the threat related to the charge or contemplated charge against the accused. If the confession was induced by a threat, it was not voluntary and was not admissible.

Although this case was concerned with a threat, it is interesting to note that Lord Reid in this respect drew7 no distinction between a threat and other forms of inducement whether by a promise of favour or the holding out of a hope of advantage.

In the light of what has been said in the cases referred to, the question for decision in this case is whether the prosecution established at the trial that the appellant’s confession was free and voluntary and that he was not induced to confess by any promise or hope of advantage held out to him by a person in authority.

[1969] 1 A.C. 20 Page 30

The appellant did not give evidence at the trial. Balchand’s evidence as to the conversation at Whim police station was not contradicted nor was it challenged in cross-examination.

At their meeting on November 6, Balchand told the appellant that he would try to help him by going for the money. That promise was not conditional upon the appellant telling Balchand what had happened. Balchand went to the prison to see the appellant at the request of the appellant’s brother. The appellant said that he was glad Balchand had come as he thought Balchand was a friend upon whom he could rely to assist him.

At Whim police station Balchand repeated the promise he had already given and he was told by the appellant what to do with the money when he had found it. As Luckhoo A.J. said in his careful and thorough judgment, nothing had happened to make Balchand appear to the appellant in a different light to that in which he had appeared on November 6.

Luckhoo A.J. rightly said:

“The very first words spoken by the appellant, who was the first to speak, would indicate that the same atmosphere and relationship which obtained at ‘the prison conversation’ prevailed. His words were ‘What you doing here, Bal, you got the money?’ ‘Bal’ was still his trusted friend, the recovery of ‘the money’ was still his earnest desire.”

Luckhoo A.J. held that the two questions Balchand asked “were not tied to or hinged on any promises. They were independent of any promise to assist. …” He went on to say:

“If he” (the appellant) “did not care to satisfy Balchand’s curiosity and tell of ‘How the money got missing?’ and ‘How the bodies got chopped?’ there was no compulsion. Balchand had never promised (nor was it suggested that he did so) to assist only if he was told.”

Their Lordships entirely agree with these observations. On the evidence given by Balchand, the appellant cannot have thought that his confession was the price he had to pay for Balchand’s help. In their Lordships’ opinion it was established that the confession was not induced by any promise or hope of advantage held out to the appellant and was free and voluntary.

Further, even if a promise by Balchand had induced the confession, Balchand was not and could not in their Lordships’ opinion have been regarded by the appellant as a person in authority. It has long been established that a confession must be

[1969] 1 A.C. 20 Page 31

induced by a person in authority to be inadmissible in evidence (see Rex v. Row8; Rex v. Gibbons9; Reg. v. Moore10.

In Reg. v. Wilson (David); Reg. v. Marshall-Graham,11 Lord Parker C.J. said12:

“The first question that rises is whether Captain Birkbeck was a person in authority. There is no authority so far as this court knows which clearly defines who does and who does not come within that category. It is unnecessary to go through all the cases; it is clear, however, in Reg. v. Thompson13 that the chairman of a company whose money was said to have been embezzled by the prisoner was held to be a person in authority. It is also clear that in some cases it has been held that the prosecutor’s wife is a person in authority, and in one case that the mother-in-law of a person whose house had been destroyed by arson was said to be a person in authority vis-à-vis a young girl employed by the owner of the house, in other words she was looked upon as a person in authority in relation to that girl.

“Mr. Hawser in the course of the argument sought to put forward the principle that a person in authority is anyone who can reasonably be considered to be concerned or connected with the prosecution, whether as initiator, conductor or witness. The court find it unnecessary to accept or reject the definition, save to say that they think that the extension to a witness is going very much too far.”

In this case at the time of the confession Balchand was no more than a possible witness for the prosecution and their Lordships agree that the mere fact that a person may be a witness for the prosecution does not make him a person in authority.

Sir Kenneth Stoby, Chancellor, based his judgment in the Court of Appeal primarily upon the ground that Balchand was not and could not have appeared to the appellant to be a person in authority. Cummings J.A., in his dissenting judgment, said that Balchand must have appeared to the appellant from the part he played in the search to have been “close to the police” and “someone who perhaps in the mind of the accused could influence the course of investigation by virtue of his position.” He thought that Balchand “could reasonably in the mind of the accused have been regarded as a person in authority.”

Their Lordships do not agree. In their opinion the evidence shows clearly that the appellant did not so regard him. He thought

[1969] 1 A.C. 20 Page 32

that Balchand was his friend. If he had not thought that and had thought that Balchand was “close to the police,” it is not likely that he would have asked Balchand to become in effect an accessory after the fact. He cannot have thought Balchand when he met him in the lockup at Whim a person in authority.

Mr. Kellock argued that a person in authority meant a person who could fulfil the promise made and that as Balchand could have done what he promised, he was a person in authority. He contended that in the cases where confessions induced by promises made by persons in authority had been excluded, the promisor always had power to fulfil the promise.

If this be the case, it does not follow that that is the meaning to be given to the words “person in authority.” The fact that a person could have kept his promise may show the reality of the promise and that it was a real inducement, but it is not a definition of those words. Mr. Kellock was unable to cite any case in support of his contention. In their Lordships’ opinion his contention cannot be sustained.

Mr. Kellock also argued that it was to be inferred from the decision in Reg. v. Harz; Reg. v. Power14 that it was no longer necessary and part of the law that to be inadmissible a confession has to be induced by a person in authority. He submitted that it is illogical that a confession should not be regarded as inadmissible if the inducement came from someone without authority and yet a confession brought about by the same inducement is inadmissible if induced by a person in authority. Although the inducement is the same, in one case the confession is regarded as free and voluntary and in the other it is not.

This question was not considered in Reg. v. Harz; Reg. v. Power14 and it cannot be concluded that the decision in that case inferentially declared that what has long been regarded as part of the law was not the law.

In Rex v. Todd15 the accused was induced to confess by two detectives who were not peace officers, representing that they were members of an organised gang of criminals and that to gain admission to the gang he had to satisfy them that he had committed a crime of a serious nature. Dubuc J. held that the promise was not made by a person in authority and consequently the confession was admissible. Bain J., who was of the same opinion, said16

  • Footnote 14     [1967] 1 A.C. 760.
  • Footnote 15     (1901) 13 Man.L.R. 364.
  • Footnote 16     Ibid. 376.
[1969] 1 A.C. 20 Page 33

“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason that it is a rule of law that confessions made as the result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe …”

The fact that an inducement is made by a person in authority may make it more likely to operate on the accused’s mind and lead him to confess. If the ground on which confessions induced by promises held out by persons in authority are held to be inadmissible is that they may not be true, then it may be that there is a similar risk that in some circumstances the confession may not be true if induced by a promise held out by a person not in authority, for instance if such a person offers a bribe in return for a confession.

There is, however, in their Lordships’ opinion, no doubt that the law as it is at present only excludes confessions induced by promises when those promises are made by persons in authority.

For the reasons stated, their Lordships humbly advise Her Majesty that the appeal should be dismissed.

Solicitors: Leman, Harrisson & Flegg; Charles Russell & Co.