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GRESSY v. DIRECKZE.P. C., Colombo, 71,853.
Criminal procedure—Charge laid under s. $15 for voluntarily causing hurt—Examination of witnesses for prosecution—Charge framed under s. 317.for grievous hurt—Magistrate informing accused that, as District Judge,he would try him' summarily—Liberty given to excused to cross-examineafresh the witnesses for the prosecution—Regularity of procedure.
Where, upon a charge of voluntarily causing simple hurt, a PoliceMagistrate -'recorded evidence and; finding the offence of grievous hurtto be disclosed, informed the* accused that he intended as District Judgeto try him summarily, and permitted' him to cross-examine afresh thewitnesses for the prosecution,—
Held, that a conviction resting upon such procedure was not bad, asthe accused was on his trial from the commencement i and had thefullest opportunity to cross-examine the witnesses.
HE accused in this case was sentenced to two years’ rigorousimprisonment upon a charge of voluntarily causing grievous
hurt to one Funchi Singho by nfeans of. a knife.
On appeal, Van “Langenberg, for the accused, raised severalobjections as to procedure, which are dealt with in the followingjudgment of the Supreme Court.
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30th September, 1901. Wendt, J.—
The accused “in this case has been convicted of causing grievoushurt with a knife to one Punchi Singho, and, having been pre-viously convicted of an exactly similar offence, has been sentencedto undergo rigorous imprisonment for two years, and to receiveten lashes. The offence was committed on the 16th August -last,■and the charge laid next day against the accused was laid undersection 316. The accused was absent on that day, and several of'the witnesses for the prosecution were examined by the Magistrate’.
A warrant was subsequently issued for the arrest of the accused,and he was also proclaimed, after which he surrendered on the3rd September. He denied all knowledge of the charge, givingthe names of four witnesses, who, he said, would prove that he Wasaway at his village Batagama on the day in question. On theaccused appearing, the evidence already recorded was read- to him,and the witnesses were cross-examined on his behalf by hisproctor. The Magistrate then framed a charge against the accused.under section 317, and recorded it as his opinion that this charge/which was triable by a District Court, might be summarily triedby him, he being Additional District Judge. He informed theaccused that he intended so to try him, and offered to permit theaccused to further cross-examine all the witnesses for the prose-cution, but accused’s pleader did not put any further questions.The trial was adjourned, and one of the witnesses whom; theaccused had cited was examined by the Magistrate, after which, indefence, the accused himself gave evidence, but called no witnesses.
It was objected on behalf of the accused that upon the Magistrateadvising himself that he might try the charge summarily, he ought to have recalled and re-exaanined all the witnesses for the-prosecution. I do not think that was necessary. This was not a•case in which, proceedings having commenced as upon an inquiry,the Magistrate afterwards made up his mind to try. summarily.Tn such a case the accused, expecting to be committed to a higher.Court, might well have forborne to cross-examine the witnesses atthe earlier stage. Here the accused was on his trial from thecommencement, and he had the fullest opportunity of cross-examining the witnesses. I think, therefore, there . was noirregularity in the procedure.
On the merits the Magistrate has characterized the evidence asoverwhelming, and I entirely agree with him. There have beensome contradictions in the evidence, which were, I think, to beexpected from the circumstances under which the offence wascommitted. They were not such as to affect the trustworthinessof the witnesses.
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BEX v. BABA.
Ma y26 andJune 2 and 18
EvtdJtJte Ordinance, is. 57, 60—Bight of counsel to read to the jury opinions of‘ experts expressed in a treatise, after intimating to the Judge that hewould not call evidence for the accused—Procedure.
Whew, in a trial fear murder, after the ease for the prosecution had'been closed, the counsel for the accused intimated to the Court that no.evidence would be called for the defence, but iq addressing the juryannounced his intention to read from Taylor's Medical Jurisprudencecertain 'opinions expressed therein relative to homicidal mania,—
. Held, that the ruling of the presiding Judge, that the counsel had• then no right, under section 60 of the Evidence Ordinance, to read the• extracts which he had in view, was correct.
. Moncbbiff, A.C.J.—If the learned counsel had produced the bookin Court in the course of the case for the prosecutioni, or by way ofevidence, or had put the passages he desired to quote to the medicalwitness while he was in the box, or in any other way had done what in. the • meaning of the Evidence Ordinance would amount to production,
' he would have been in order.
Whndt, J.—If the counsel for the accused had intimated his inten-.tion .to adduce evidence, and tendered in due course the book as evidence,ii would have been his duty to satisfy the Court that the conditions^precedent, mentioned in the first proviso of section 60 of the EvidenceOrdinance • had been complied with; and upon the particular passagesbeing . tendered, it. would have been open to the prosecution to insist thatthe context, of the passages should also be put in as tending to make themeaning of the author clear.
B. -Justice. Middleton reserved for the consideration of theother Judges of the Supreme Court the following point,
which arose at the trial of ’ the accused at the Galle Sessions
holden on’the 19th May, 1902.
His Lordship’s statement was as follows: —
'1. The accused was tried for murder, under section 296 of theCeylon Penal Code, before me and an English-speaking jury on19th May, and was defended by Mr. Jayawardene, assigned by meas counsel,
The. cross-examination of the witnesses for the prosecutiontended to show that the defence raised was insanity.
The doctor who gave evidence was only asked by counselfor the defence if the. accused had been in the house of observa-tion; but, after the doctor’s re-examination as to accused’s stateof mind, counsel for the accused, with my leave, elicited from thedoctor that he had never seen a case of what counsel styledhomicidal mania.
The Crown Counsel closed his case and, upon counsel for thedefence stating he had no witnesses, declined to address the jury.
Counsel for the defence then began to address the jury, andannounced bis intention of reading from a book, said by him to be
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1902. ■' written by a well-known scientific authority (Taylor’s Medical
Man 25 and Jurisprudence)," certain opinions expressed therein relative toJuneiandlO. homicidaj mania
Counsel for the Crown objected to this, and I, after hearingcounsel for the defence, who relied on the proviso to section 60and sub-section (14) of section 57 of the Evidence Code, and whoalso referred me to page 377 of Field’s Law of Evidence inBritish India, declined to allow this to be done.
Counsel for the accused thereupon sat down and refused tocontinue his address to the jury, on the ground that he had noother defence .to offer.
I then summed up', quoting and explaining to the jury theopinion of the Judges given to the House of Lords in McNaughton’sease, and also drawing their attention to section 77 of the CeylonPenal Code and to section 105 of the Ceylon Evidence Ordinance-.The jury returned an unanimous verdict of guilty of murder, andI passed sentence according to law.
I have to submit for the opinion of "two Judges of thisHonourable Court whether I was right in refusing to allow counselto read to the jury opinions from a book which (1) had notbeen proved to be what the learned counsel asserted it was; (2)nor was found to contain the opinion of an expert on homicidalmania; (3) nor had been referred to in any way before, so that,if it did contain opinions which were applicable to the facts ofthe case under trial, there had been no opportunity for thecounsel for the Crown to test or discuss such opinions.
' I do not think it necessary to send a copy of my notes unlessthe Supreme Court require thesn.
The case was argued before Moncreiff, A.C.J., and Wendt, J.,on the 25th May and 2nd June, 1902.
H. Jayawardene, for the accused, cited I. L. R. 10 Cal. 142;Evidence Ordinance, section 57; Reg. v. Ramasamy (6 Bowie’sH. C. Rep. 51); Field’s Evidence in British India, note on section167; King v. Thegis (5 N. L. R. 101); and referred to pp. 556-576as those which counsel at the trial intended to read to the jury.
Ramanathan, S.-G., contra.
Cur. adv. vvlt.
10th June, 1902. Moncreiff, A.C.J.-t-
The accused in this case was charged with murder, and wastried at the first Criminal Sessions of the Supreme Court holdenat Galle in May, 1902. After the case for the prosecution hadclosed, counsel for the defence stated that he had no witnesses,and Crown Counsel declined to address the jury.
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I may here deal with a point which arose at the argument. 1802.
Section 284, sub-seotion (8), of the Criminal Procedure Code May 25 and
provides that “ If the accused or his pleader announces his
intention not to adduce evidence, the prosecuting counsel may MoucmeaFr,address the jury a second time in support of his case, for thepurpose of summing up the evidence against the accused. ”
If he declines to do so, he has of course no right to comment onthe speech of counsel for the defence. The word in this sectionis “ evidence, " and the word used by my brother Middleton, whotried the case, is “ witnesses, ” but the difference, in my opinion, isnot material, because Crown Counsel having declined to addressthe jury, counsel for the defence must have been aware that boththe Court and. the Crown Counsel assumed that no evidence wouldbe called for the defence. The case submitted by my brotherMiddleton proceeds as follows:—
“ Counsel for the defence then began to address the jury, andannounced His intention of reading from a book, said by him to bewritten by a well-known scientific authority (Taylor’s MedicalJurisprudence), certain opinions expressed therein relative tohomicidal mania.
" Counsel for the Crown objected to this, Mid I—after hearingcounsel for the defence, who relied on the proviso to section 60and sub-section (14) of section 57 of the Evidence Code, and whoalso referred me to page 877 of Field’s Law of Evidence in British/wdia—declined to allow this to be done.
“ Counsel for the accused thereupon sat down and refused tocontinue his address to the jury, on the ground that he had noother defence to offer. ”
The Judge then summed up, quoting to the jury the opinions ofthe Judges given to the House of Lords in MoNaughton’s case, anddrawing their attention to section 77 of the Ceylon Penal Code andsection 105 of the Evidence Ordinance. The jury found an unani-mous verdict of guilty, and sentence was passed according to law.
The Judge has reserved this question,—whether he was right inrefusing to allow counsel to read to the jury passages from a bookwhich (1) had not been proved to be what .the learned counselasserted it was; (2) nor was found to contain the opinion of anexpert on homicidal mania; (3) nor had been referred to in anyway before, so that, if it did contain opinions which were appli-cable. to the facts of the case under trial, there had been noopportunity for the counsel for the Crown to test -or discuss suchopinions.
There are various sections of the Evidence Ordinance whichrelate to the use of books in the course of a trial, particularly in
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1902. this case sections 57 and 60. Towards the end of section 57 it isJuMSandlO *n*“na*e^ in all the cases enumerated in the first part of
' the section, “ and also on all matters of public history, literature,
science, or art, the Court may resort for its aid to appropriatebooks or documents of reference. ” There is a further provisionwith regard to the course to be taken by the Court when someperson calls upon it to take judicial notice of any fact. The Courtwas not called upon, in this instance, to take judicial notice of anyfact, and' if it is said that it was called upon, the course pointedout was not followed by the strict production of the book requiredby the section. I am of opinion that that section does not applyto this *ca8e. "Then, section 60 provides that all oral evidence must,in all cases whatever, be direct. Certain illustrations are given ofthat provision, and then the section provides that “ the opinionsof experts expressed in any treatise commonly offered for sale, and 'the grounds on which such opinions are held, may be proved by theproduction of such treatises if the author is dead or cannot befound, or has become incapable of giving evidence, or cannot becalled as a witness without an amount of delay or expense whichthe Court regards as unreasonable. ”
The sense of these two provisions induces me to think that; ifthe learned counsel in this case had in a regular manner producedthe book to the attention of the Court in the course of the case forthe prosecution, or by way of evidence, or had put the passages hedesired to quote to the medical witness while he was in the box, orin any other way had done what, in the meaning of the Ordinance,would amount to production, he would have been in order. Butjthe attitude taken up by him was this: that he had a right in thecourse of his speech simply to open a book of the scientificdescription intended by the Evidence Ordinance, and readtherefrom such passages to the jury as appeared to him proper,having reference of' course to the subject in hand. I think hisposition was not sound, that he could not do so, that he hadpractically intimated to the Court that he intended to adduce noevidence, and that, therefore, he was not strictly in a position evento produce the book at that stage – without the permission of theCourt. I think the learned counsel was wrong, and the ruling ofthe Judge was right;
We thought, however, that since this case involved a charge ofmurder, we should look at the passages which counsel intendedto read. What we might have done if we had found that thosepassages ought to have affected the verdict of the jury it is notnecessary to say, because on looking at the passages—they are tobe found in the edition of 1883, vol. II., pages 556-576—and
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reading .the evidence in the case, I came to the conclusion that ifthe jury, upon the evidence as it was placed before them, and afterthe summing up of Ihe Judge, were of the unanimous opinionthat no case of homicidal mania had been made out, the passagesintended to be read could not have, and ought not to have, alteredtheir opinion.
For these reasons I am of opinion that .the ruling of the Judgemust be upheld and .the conviction affirmed.
1 also think that the ruling of my brother Middleton at thetrial was correct. Clearly the defence intimated .that it wouldcall no evidence, and, acting on that intimation, .the Courtoffered the prosecuting counsel his opportunity to sum up,of which, however, he did not choose. to avail himself. I shoulduo.t like to lay it down as a hard and fast rule .that, by thedeclaration of that intention at the opening of the defence, thecounsel for the prisoner concluded himself from calling evidenceat all. If he made that declaration, while all the time intendingto put in the passages in question, losing sight for the momentthat they would be regarded as evidence, or if in .the course ofhis address to the jury it became clear to him that he should putsome evidence before the Court, he might, I think, have appliedto the Court for leave to do so, and if bis application appeared tobe reasonable, I have no doubt the Court would have power .togrant it. The counsel for .the prosecution would .then have beenentitled to his right of reply. J think also that the passages fromTaylor could only have been put to the jury as evidence, and assuch it had to be brought under the provisions of the EvidenceOrdinance. Section 57 does not apply, because it was not a caseii> which the Court wished to inform itself upon some mattermentioned in the section. The evidence could, therefore, only beput in under section 60.
Assuming the defence intimated its intention to adduce thatevidence, and tendered the book as evidence in due course, itwould have had to satisfy the Court that the conditions precedentmentioned in the first proviso had been complied with; and uponthe particular passages being tendered, I conceive it would havebeen open to .the prosecution to insist that the context of thepassages should also be put in as tending to make the meaning of toeauthor clear. But nothing of this sort, was done; leave to adduce 'evidence was not asked for, and the book itself was not tendered asevidence a.t all. The counsel insisted on his right to read extractsfrom it to the jury. That, I think, he was not entitled to do.
May 2$ andJune2andl0.
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1902. In view, however, of the circumstances mentioned by the ChiefMay 25 and Justice, I have myself gone over the evidence at the trial, in.JuneiandlO.^ asoertain whether the admission in evidence of the
Wehdt, J. pa8Sages from the book in question ought to have made anydifference in the verdict of the. jury, and I am of opinion' that itought not. The proposed evidence after all could only relate tothe author’s opinion of the inferences to be drawn from provedfacts. Now, no exception has been taken or suggested to thesumming up of my brother Middleton. He called the jurors’attention to the provisions of the law as to the defence of insanity,and he told them of the opinion of the Judges given to the Houseof Lords in McNaughton’s case. There cannot be said, in anysense, to have been a misdirection. The jury on .the facts provedfound that the defence of insanity had failed, and I cannot thinkthat hearing the passages of Taylor read to them ought to have, orwould have, made any difference in their verdict.
For these reasons the conviction will be affirmed.
GRESSY v. DIRECKZE