Lewis Fernando v. The Queen
[Cotjtrt OB' Criminal Appeal]
1952 Present :Gunasekara J. (President), Pulle J. and Swan J.F. LEWIS FERNANDO, Appellant, and THE QUEEN, RespondentAppeal No. 46 with Application No. 69 op 1952S. C. 2—M. G. Colombo, 20,980
Evidence Ordinance—Declaration relevant under section 32 (1)—Requirement ofcorroborative evidence.
When, in a trial for murder, the statement of the deceased person as to the' cause of bis death has been admitted in evidence under section 32 (1) of theEvidence Ordinance, it is not imperative that the jury should be advised thatthey ought not to act on the deceased’s' statement unless there is some reliable■ corroboration.
_/.PPEAL, with application for leave to appeal, against a conviction ina trial before the Supreme Court.
V. S. A. Pullenayagam, for the accused appellant.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
GXJ2STASEKARA J.—Lewis Fernando v. The Queen
September 8, 1952. Gu:nas:ekah.a J.—
The appellant Lewis Fernando was convicted of the murder ofMalwenna Hew age Edwin, a young man of 20, who died of stab woundsinflicted on him on the 11th October, 1951. The appeal was pressedupon two grounds of misdirection that were not included among theoriginal grounds of appeal but were formulated by Counsel after theappealable time had expired. They relate respectively to a commenton the fact that the appellant did not give evidence and to a directionregarding the evidentiary value of a statement made by the deceasedman as to the circumstances of the transaction which resulted in hisdeath.'
The following facts were proved by the prosecution by evidence thatwas not challenged in cross-examination or contradicted by otherevidence. The deceased was an assistant in a tailor’s shop in Pettah,where he had been employed for about a month and a half. He wasliving in Maradana during that time at the house of his employerKassivel, but his home was in Hunupitiya, a few miles outside Colombo.The appellant himself lived in Hunupitiya and was a friend of thedeceased. On the 11th October the appellant turned up at Kassivel’shouse at about 6.30 a.m., and obtained his permission for the deceasedto go with him to Hunupitiya to give him a letter that was in a boxin the deceased’s house. The two of them then left for Hunupitiya,the deceased going “ quite happily ” with the appellant so far as Kassivelobserved. At about 7.30 a.m. they were seen at Hunupitiya walkingalong a footpath in the direction of the deceased’s house, which wasabout a quarter of a mile away, and they were chatting together as theywent. This was in the neighbourhood of the house of a man namedPeter Perera which stood some 40 yards away from the path. At about8 a.m. they arrived together at the deceased’s house. There the deceasedgot from his sister a photograph of himself, which he said the appellantwished to see, and also a letter that he had left with her, and the two menwent away together a short while later. At about 9 a.m. Peter Perera,who was in his house, heard a cry of pain from the direction of the foot-path and presently the deceased ran into his compound in blood-stainedclothes and fell there. Peter asked him what had happened to bim andin reply to Peter’s questions he said that he had been stabbed with aknife by his friend and that it was Lewis who stabbed him. He also _stated to a neighbour of Peter’s named Anthony, who too came up aiidasked him “ who had done this to him ”, that it was Lewis who had-stabbed him. Anthony went to the village headman’s house andinformed him of the stabbing. A police constable, who happenedto come there when Anthony’s statement was being recorded by theheadman, noted that the time was 9.45 a.m. by his watch. Havingrecorded Anthony’s statement the headman went to Peter’s house withthe constable. They found the deceased still lying on Peter’s compound,at the end of a trail of blood that started from the foot-path, and theyhad him taken to the General Hospital in Colombo. He was admittedto the hospital at 11.11 a.m., and he made a statement on affirmationto an unofficial magistrate at 1.15 p.m. Meanwhile the police had
GUEASEKARA J.—.Lewis Fernando v. The Queen
arrested the appellant at 1 p.m. at a bakery at Hunupitiya. Thedeceased died at 4 a.m. on the next day. He had received seven stabwounds, of which three were on the front and one on the back of the chest,and the rest were on the front of the left shoulder, on the palm of theleft hand penetrating it from front to back, and the back of the rightelbow. The four stabs on the chest had injured the; pericardium andthe right auricle, the left lung in two places, and the right lung.
Though this evidence was not contested, the defence did dispute thetruth of some further evidence given by Anthony, the effect of which wasthat he had seen the appellant stab the deceased, and also the truth ofthe statements made by the deceased himself. No evidence was calledfor the defence, but the appellant stated from the dock that he “ knewnothing about the stabbing ”.
The learned Judge directed the jury to the effect that if they couldnot accept Anthony’s evidence in full they had to consider whether theycould act' upon the statements made by the deceased. It was contendedfor the appellant that the learned Judge “ failed to caution the juryadequately upon the danger of acting on the uncorroborated depositionof the deceased, ” and that the failure to do so amounted to a misdirection.This ground of appeal was originally formulated as a ground of law,but learned Counsel for the appellant agreed at the hearing that thealleged misdirection did not involve “ a wrong decision of any questionof law ”. It follows that the appeal can succeed on this ground onlyif it has been shown that there has been a miscarriage of justice.
The deposition in question was in the following terms :
“ Lewis Fernando stabbed me with a kris knife. I was stabbedseveral times. I think about 9 times. He demanded money from me.I refused to give him. He wanted money as ‘ kappan ’. I did notowe him any money. The stabbing took place near a jungle. Lewiswanted a letter delivered to him. I went home to fetch it. Whilstreturning he attacked me with a kris knife. No one saw the stabbing.For my cries people from the neighbouring houses came up. Theysaw the man running away. ”
It is apparent from the facts that are not in dispute that the deceasedwas in a position to observe whether it was the appellant or someone elsewho stabbed him : he was stabbed in broad daylight when he was outin the open, and five of the seven wounds were inflicted on the frontof the body. According to the prosecution the deceased and the appellantwere on friendly terms with each other up to that day, and the cross-examination of the prosecution witnesses suggests that that fact iscommon ground. It is therefore improbable that the deceased wouldhave made an accusation against the appellant which he knew to befalse. According to the evidence of Peter Perera, who was cross-examined only as to whether he knew “ how the quarrel started betweenthe accused and the deceased ”, it was immediately after he was stabbedthat the deceased declared that it was his friend Lewis who stabbed him.To the Magistrate the deceased stated further that Lewis stabbed himwhen he was returning from his house where he had gone to fetch a letter
ATTWASBICARA J.—Lewis Fernando v. The Queen
that Lewis had wanted to be delivered to him. The facts that the.appellant had made such a request, that the deceased went home thatmorning as stated by him, that he had set out from home on his returnjourney a short time before he was stabbed, and that the appellantwas in his company then have been proved by other evidence. It seemsto us that there was ample corroboration of the deceased’s deposition.
In his summing up the learned Judge, having discussed the evidenceof Anthony and the conclusion that would flow from an acceptance of it,directed the j my as follows :
“ If on the other hand you feel that you cannot accept Anthony’sevidence in full and if you feel some reasonable doubt as to whetherAnthony saw all that he says he saw, you then come to what you callthe dying declaration and to certain other circumstances which Ishould wish to mention to you.
Now, Gentlemen, with regard to dying declarations they are admis-sible evidence, but of course naturally when you are dealing withstatements by a person who is not before you, you will bear in mindthat they cannot be tested in the way that other evidence is testedby cross-examination, and it is for that reason that juries in practiceare warned to be cautious in dealing with dying declarations, but that .by no means implies that you should reject it. It merely means thatyou should consider in your mind very carefully any alternativepossibilities if there are any alternative possibilities, that may presentthemselves to you* but it by no means implies that you must declineto act on it, provided you approach it with caution bearing in mind,as I say, the faot that it is unable to be tested in the way that otherevidence can be tested ”.
He then read to them the deposition and discussed at length the evidenceof what he referred to as “ corroborative factors ”. Finally, on thequestion of the identity of the deceased’s assailant, he said :—
“ It is purely a question as to what value you are prepared to attachto Anthony’s evidence, which if you accept in full makes your taskeasy. If you do not accept that evidence in full but think that hemerely arrived at the scene after the stabbing, then you are thrownback upon the dying declaration, and the fact of course that whenAnthony asked this man who stabbed him he said that it was Lewiswho stabbed, and the fact for what it is worth that Lewis and this manwere together a short time before this episode, and that they left thehouse of the sister Emmie Nona a short time before. We do not knowexactly what time it was but it was half an hour or so before thisepisode.”
The question as to the direction that should be given to a jury aboutthe evidentiary value of a statement admitted under section 32 (1) of theEvidence Ordinance was considered by this Court in the case of R. v.Asirvadan Nadar x. It was held that where in a trial for murder statementscontained in a deposition made by the deceased formed to a very largeextent the foundation of the case against the accused it was imperative
i(1950) 51 N. L. R. 322.
Weeraaooriyu v. Sabdeen
that the jury should have been adequately cautioned that they shouldappreciate that the statements of the deponent had not been tested bycross – examination ; and that "while there is no rule of law requiringcorroboration of such evidence, the jury should always be cautionedas to the inherent weakness of this form of hearsay and their attentionought specifically to be drawn to the question of the extent to whichthe deposition is corroborated or contradicted by other facts and sur-rounding circumstances proved in evidence. Mr. Pullenayagam reliedon this decision and also invited us to adopt the following dictum ofBeaumont C.J. in the case of Emperor v. Akbarali Karimbhai1 decidedby the Bombay High Court :
“ Generally speaking, and as a rule of prudence, I am of opinionthat a declaration relevant under section 32 (sc. of the Evidence Act),but not made by one in immediate expectation of death, and notmade in the presence of the accused, ought not to be acted uponunless there is some reliable corroboration.”
At the same time, however, he very properly brought to our notice ajudgment of Leach C.J. in a Madras case, In re Guruswami Tevarz,dissenting from this view. We respectfully agree with the view takenin the Madras case ; but even if the other were the better opinion wedo not think it was necessary in the circumstances of the present casethat the jury should have been advised that they , ought not to act onthe deceased’s statement unless there was sofae.- reliable corroboration,for there was such corroboration furnished' by facts that were not indispute. The jury were adequately cautioned as regards the inherentweakness of evidence of this kind and we are unable to agree that there-was a misdirection on this point.
[The Court then considered the other ground of appeal that wasargued and was of opinion that it could not be upheld.]
B. F. LEWIS FERNANDO ,Appellant ,and THE QUEEN ,Respondent