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Present: Wood Benton J.
AMABIS APPU v. PALIS APPU.
745—P. C. Avisawella, 10,013.
Evidence—An accused may cross-examine his co-accused if he g'cesevidence in his own behalf.
Where one ot several accused persons comes into the witness boxon his ownbehalf, he becomes,save as totheprovisoforthe
limitation ofcross-examination ' tocredit, andtheprobabilitythat
evidence given by him may notbe admissibleasagainsthisco-
accused, a witness in every sense of the term.
An accusedmay cross-examinea co-accusedwho givesevidence
in his own behalf.
HE facts appear sufficiently from the judgment.
van Langenberg, for the accused, appellant.
Walter Pereira, K.G., S.-G., for the respondent.
Cur. adv. vult.
November 22, 1911. Wood Benton J.—
The accused-appellant was charged in the Police Court ofAvisawella with theft of two buffaloes. The Police Magistrate hasconvicted him, and sentenced him to six months’ rigorous imprison-ment. The conviction rests substantially on two grounds: in thefirst place, the late hour at which the buffaloes were received by theappellant; and in the next place; his failure to explain why theyshould have been left with him. at all. He gave no evidence at thetrial, but he intimated a desire to cross-examine his co-accused,Peries, who was called as a witness. The Police Magistrate refusedto allow him to do so. I have had the advantage of hearing Mr. vanLangenberg on behalf of the appellant and the Solicitor-General forthe Crown, on the important question whether that ruling by' thePolice Magistrate was right, and I have come to the conclusion thatit was. not. The question depends on the provision of section 120 (4)of the Evidence Ordinance, that in criminal trials an accused shallbe a competent witness in the same manner and with the like effectand consequences as any pther witness, but that the Court maylimit the cross-examinatiop of an accused person, availing himselfof the benefit of sub-section (4) of section 120 to .credit, to such extentas it thinks jproper. The only local decision bearing directly on thequestion} that has to be ^decided on the present appeal is the case of
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King v. Thegia1. It was held in that case, that where an accused l&ti.admitted in the witness box that he inflicted the wound, but pleadedthat he did so in self-defence, being single-handed in the presence of Rbnton J.a large party of assailants, it was permissible to ask him whether hisco-accused were present at the quarrel on two grounds: in the first Appu V.place, because the question was relevant to his own defence, as tend- Ptai*ing to show that at the time he was assaulted there was no one nearto support or to help him; and in the next place, because, althoughthe law provided, only in terms, that the accused was a competentwitness in his own behalf, that did not mean that he was to saynothing about other persons. “His right,” said Lawrie" to give evidence on his own behalf involves the right to give a fullaccount of what happened, to give every detail, to mention thenames of every one present, and to state what each man did.” It isquite true, as the Solicitor-General pointed out, that in the case ofKing v. Thegis1 the objection to the question put to the accused wastaken by the counsel for the prosecution. But it seems to me thatthat case directly recognizes the principle that, where one of severalaccused persons comes into the witness box on his own behalf, hebecomes, save as to the proviso for the limitation of cross-examina-tion to credit, and the probability that evidence given by him maynot be admissible as against his co-accused (see section 30 of the 'Evidence Ordinance), a witness in every sense of the term. Thisprinciple has been acted upon by the English Courts under the ana-logous provision of section 1 of the Criminal Evidence Act, 1898.
In that section the material language used by the Legislature is asfollow:“ Every person charged with an offence shall be a com-
petent witness for the defence at every stage of the proceedings,whether the person so charged is charged solely or jointly with anyother person.” In the case of King v. Hadwen,2 it was held by thethen Court for Grown Cases Reserved that the effect of this sectionis to make an accused person, if he gives evidence, an ordinarywitness in the case, and therefore liable to be cross-examined onbehalf of the person jointly indicted with him. Section 120 f-L ofthe Evidence Ordinance uses the words ** a: competent witness in hisown behalf, ” instead of the words in the English statute “ a com-petent witness for the deffence M; and in the case of James Macdonnell(or MacDonald),3 it seems to have been suggested in argument—andthe point is noted by Mr. Justice Darling in delivering the judgmentof the Court—that those two expressions would not be identical inmeaning, and that if the words “ in his own behalf ’* were used, theymight be interpreted as restricting the right of an accused personto give evidence to matters, affecting himself alone. In the case,however, of King v. Thegia1 which is binding upon me, and withthe reasoning of which I respectfully agree, the words " in his own
* (1901) 5 N. L. if. 107.* (.1902) 86 Law Times 601.
3 (1909) 2 Cr. App. R. 322.
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AmariaAppu v.Patia Appu
behalf ” are treated in effect as meaning “ for the defence,” andemphasis is expressly, put on the subsequent provision, which T. havealready quoted, placing an accused person who comes forward as awitness in the same position as any ordinary witness who may becalled in the case. There can be no doubt but that it is in theinterests of.justice that the section should be interpreted in the sensewhich I am now putting upon it. I will quote in this connection thelanguage used by Mr. Justice Darling himself in the case abovereferred to: ‘‘ Any other interpretation of the Act would lead toendless confusion and injustice. For instance, a prisoner-witnessin giving evidence on his own behalf may necessarily have to giveevidence on behalf of a co-prisoner. Can it be said that suchevidence must be ruled out?”
On the grounds, that I have stated I set aside the conviction andthe sentence in this case, and send it back for further inquiry andadjudication in the Police Court of Avisawella. The appellant willhave the right, so far at least as the provisions of section 120 (4) ofthe Evidence Ordinance are concerned, to call and examine hisformer co-accused as a witness on his own behalf, and to give suchexplanation as he is able, either by calling himself as a witness, or bycalling other witnesses, of the points on which the Police Magistraterelies in his original judgment.
Set aside and sent back for further inquiry.
AMARIS APPU v. PALIS APPU