Prima Facie Journey

           The case which I would discuss and commentary about is Saminathan v. PP [1937] MLJ 38. This is a case which decide on matter of illegally obtained evidence. The fact of the case is, the accused  was charged with keeping a common betting house, and the charge arose out of information given to the police previously. On the day of the scene, a police inspector and detectives were watching the room occupied by the accused from a building nearby. After wait for time, they went quickly to the room of the accused. When the accused saw them, he rushed to the table to take a pieces of paper and put it inside his mouth and started to chew. Then, the accused started to run away but the other police officer managed to get him. After that the Inspector conduct a search and obtained a number of pocket books and documents which indicated that the accused involved in betting things. 

           The accused then was brought for trial, and it then turned out that the Inspector who entered his house and searched and arrest him was not a senior Police Officer within the meaning of the term in Section 2 of the Betting Enactment. In other words the search, arrest and the documents which were obtained were illegal. Witnesses came forward and have said that they had been making bets with the accused some time before at the place. The pocket books and documents founds were put in evidence against him so do to the note which was found in the pocket of his coat. The learned Magistrate came to the conclusion that the onus of the proof was entirely on the prosecution and they had established their case. He accordingly convicted the accused and fined him $ 800, in default to undergo six months imprisonment.   

          Now the accused appeal the decision make by the magistrate. One of the argument of the accused in the appeal was that  the documents which were found during the search should not have been put in evidence against him since the police were not in legal possession of them. The learned judge said that the manner in which the the police obtained possession of these documents doesn't concerned about since he is only concerned with their relevancy. The marked note evidence was corroborated one and so do the note books and other documents. The accused's evidence in the court is far from convincing. The accused also make a lot of  denial which arise suspicious in the court attention. The learned Justice Aitken move on to say that;

   "I think that it was sufficient to support the conviction, in other words I cannot see that the learned Magistrate was wrong in fact. He took the view that this place was open to a class of the public for the purpose of betting and wagering, and, I think, the Tamil population of Ipoh, or even a section of such population, can properly be regarded as a class of the public. He also took the view that the room had been used for habitual betting or wagering. I am not prepared to say that he was wrong in taking that view. I think that a Magistrate or Jury could reasonably have come to that conclusion on the evidence in this case, though I doubt whether I myself would have arrived at the same conclusion."

The learned judge decided to set aside the appeal. 

         Based on the case of Saminathan v PP, I believe the learned judge has given a right judgement. It is always back to the power of the discretion of the court whether to accept the illegal obtained evidence or not. Since there is no clear indication regarding the illegal obtained evidence in law provision, the principle in the case of Kuruma v Queen [1955] 1 All E.R 236 is applicable. In the case of Kuruma, the appellant was stopped by a police constable and his person searched. Regulations 29 of the Emergency Regulations of Kenya, where these facts took place, allowed any police officer of or above the rank of assistant inspector to stop and search any individual. The question on appeal to Privy Council was whether the evidence proving that the apellant was in the possession of the ammunition had been illegally obtained and should not have been admitted. Lord Goddard C.J said that that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, then the court is not concerned with how the evidence was obtained. In other words, illegally obtained evidence are admissible in law. 

          In a develop country such as United States Of America, illegally obtained evidence is inadmissible since it will deprived the rights of the accused. I do believe in this standing. But in the case of Saminathan v PP, it was clearly proven beyond doubt that the accused was involved in betting bussines. The witness have proved this by saying that they had deal with the accused previously in betting business at that premise. The documents such as book note also indicates that the accused is guilty. Moreover, when the Inspector went into the premise, the accused had try to demolished the evidence by chew it inside his mouth. Besides the Inspector also had obtained enough information regarding the accused bussines before making the search.

            All the facts and the evidence tend to bring one conclusion that the accused is guilty person who should try by the court. But because of the search and arrest is not made by a senior Police Officer as required by the Betting Enactment does it justify that the evidence which are obtained are inadmissible to convict the accused. Then the documents which has obtained has become an illegal obtained evidence. My point of the view, is still doesn't change any fact or evidence when an arrest or seizure of the documents is made by either a Inspector or Senior Police Officer. An accused person should not be given a chance to use a hole in the law to escape himself from facing the consequences of his conduct. In this this kind of situation it is totally acceptable that illegally obtained evidence is admissible in law. In that sense, I agree with the judgement of Justice Aitken in this case. Again I would like to express that, the court before deciding whether to accept or not an illegally obtained evidence it has to look out the fact of the case and circumstances surrounding of.