KING o. THEG1S ei al.
July 31 and
Evident-v—Ordinance No. 14 of 1895, s. ISO (4) and *. 167—" Wit-nos* in hi* August 1.own behalf "—Improper rejection of evidence—New trial.
Under section 120 (4) ef the '* Evidence Ordinance, 1895,” an accusedin a criminal trial is " a competent witness in his own behalf," whichmeans that be may go into the witness box and give a full account ofal) that happened, stating who were present and what each did.
Where an accused admitted in the witness box that he inflicted awound, but pleaded that he did so in self-defence, being single-handed-in tiie presence of a large party of assailants, and he was asked whetherhis two co-accnseds were present at the quarrel,—
Held, that that, question was one which should have been allowed to beput, and that its rejection by the presiding judge justified a reversal ofthe conviction and sentence, and the ordering of a new trial, undersection 167 of the Evidence Ordinance.
A T the instance of the counsel for the accused (who were
fl, tried and sentenced to death for murder), the Attorney-General, acting under section 355 (8) of the Criminal ProcedureCode, certified to the Supreme Court as follows:—
“ M. Thegis, W. Irishamy, and M. Agris were tried before Mr.Justice Browne at the Supreme Court Extra Sessions held atOallfl this year (1901) and were on the 5th day of July lastconvicted of the offence of murder and sentenced to death.
“ During the examination of Agris as a witness in his ownbehalf, under the provisions of sub-section (4) of section 120 of theEvidence Ordinance, 1895, the presiding judge ruled that hecould not give any evidence to show that the other two accusedpersons were not present at the time and place of the murder.
“ The question of law as to the correctness of the ruling nothaving been reserved by the presiding judge – under the provi-rions of sub-Bection (1) of section 355 ef the Criminal Procedure-Code, I hereby certify, under the provisions of sub-section (3)-of that section, that in my opinion that question of law oughtto be further considered.”
It appeared that, after the case for the prosecution had been-closed, the counsel for the accused called the three prisoners togive evidence on their own behalf. The first and second accusedstated that they were not present at the quarrel, in the course ofwhich the deceased man received the fatal wound. Agris, the third’accused, deposed that on the evening in question he and the de-ceased met on a path and had a quarrel, that the deceased struckhim on the rib and fractured it, and that thereupon he used aweapon in self-defence. His counsel then put to Agris thefollowing question: “At the time you and the deceased quar-relled, was either the first or the second accused present?
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1901. Mr. .Justice Browne disallowed the question, on the ground thatJvly31and an accused person could give evidence on his behalf only, but not! ' for his co-aecuseds.
Mr. Justice Browne,., after closing the Galle sessions, leftG-alle for Jaffna on the Northern Circuit, and from there heforwarded to . the Begistrar of the Supreme Court at Colombo aspecial case (dated 25th July) upon the point already certifiedby the Attorney-General. His Lordship said: —
“I refused to allow the question to be put, inasmuch as hisanswer (which, after their evidence and his that he was comingby himself, might be expected to be that they were not there)would have been evidence in their defence, and in mv judgmentthe third prisoner, under section 120 (4) of the Evidence Ordi-nance, was allowed to be only ‘ a competent witness in his ownbehalf,’
“ The question I would reserve for the judgment of theCollective Court is whether the question should have been putto third prisoner and his answer received. If it should havebeen allowed, there may arise another question whether the'exclusion of that testimony necessitates the acquittal of thefirst and second prisoners.
“I do not know whether the section in question was takenfrom the Law of Evidence and Procedure in any other country.It is not in the Indian Evidence Act, and section 1 of the Act-61-62 Viet. c. 36 enacts that ‘ every person charged with an offence……….shall be a competent witness for the defence at any stage
of the proceedings, whether the person is so charged solely drjointly with any other person, provided,’ &c.
“In my judgment, this provision, ‘for the defence,’ coupledWith the contemplated possibility of there -being . more than oneaccused, enables one accused to give evidence pn behalf of a co-accused. But those general words are not in our. EvidenceOrdinance, nor is that possibility referred to therein.
“It appears to me that the restriction of the capability thenfirst given to an accused to give testimony may have beenspecially made (1) to prevent an accused, who sees his ownacquittal is impossible, being tempted to commit perjury infavour of his co-accused, that he may gain their favour for himself or for his wife and children, &c., in the event of his ownexecution or incarceration; and (2) although the prosecutingdepartment here generally restricts the charge, especially in. casesof capital offences, to those accused who appear to have actuallycommitted the injuries, &c., which caused the offence, to preventthe danger (which , I think not: at all impossible) of a jury being
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•induped < in, mercy to limit their conviction to one of them only
who takes the sole responsibility on himself.’’JAvguatld
The case came on for argument before Lawrie, A.C.J., andMonoreiff, J., on the 31st July.
Layard,: A.-G.—I Ayes moved in this matter by the counsel whodefended the' accused in Galle. They have retained counsel tp• appear ' before Your Lordships. When their address is over., Twould say a- few words.
Van Lang’enberg for the accused.—The case against the firstand second accused was that they were present at the quarrel andassisting the third accused, who delivered the fatal blow. Thequestion of evidence on his own behalf as distinguished fromevidence, on behalf of his co-accused does not arise here, owing tothe nature of the first accused’s defence. His defence was that hewas alone and .had tq defend himself against a crowd of assailants,and that he inflicted, the wound on the deceased in self-defence.
Therefore it was part of his own case to prove that the first and■second accused were not there and did not help him. In D. G:,
Chilaw, 2,567, decided by the Supreme Court in appeal on 16thFebruary, 1899, Bonser, C.J., has decided this very point. HisLordship said:—
Was the District Judge wrong in refusing to allow the counselfor the accused to ask the second accused when giving evidenceon his own behalf (under section 120 of the Evidence Ordi-nance, No. 14 of 1895) whether he had seen the first and thirdaccused at the spot?
The Ordinance permits an accused to give evidence in the samemanner and with the like effect and consequences as any otherwitness. He may give all the evidence he can to exculpate him-self; and the defence may well be that one or the other accusedcommitted the offence. I cannot see how that evidence could beexcluded. I see no difficulty in one accused asking another aquestion tending to exculpate himself, and I hold that the DistrictJudge was wrong to refuse to allow the question to be put.”
Another case, Queen v. Appuhamy (I S. C. R. 59), is usefulhere. [Lawrie, A.C.J.—If we think the question ought to havebeen put, what would be .the result?] The conviction ,andsentence would fall. The last section of the Evidence Ordinanceshows that the improper rejection of evidence may be a groundfor a new trial. Queen v. Buyeappu (5 8. C. G. 104); Queen v.
Juan (3 S. C. R. 22.) [Lawrie, A.C.J.—What powers have weijunder. the Code?] Under section 355 (2) of the Criminal- Pro-cedure Code, to reverse, affirm, amend, or make such other, order
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July 31 andAugust 1.
as justice may require. I ask for an acquittal on the authority ofQueen v. -Buyeappu. I do not think Your Lordships will bejustified in reading the notes of evidence taken by Mr. JusticeBrowne, in order to see whether, independently of the rejectedevidence, there is evidence against-the accused. [Moncreiff, -l.—Section 167 of the Evidence Ordinance gives us that power.]But that section applies only to the appellate jurisdiction of theSupreme Court when the record is in due course before it. Thepresent case comes before Your Lordships on a point certified bythe A ttornev-General, and the case stated by the presiding judge,whose notes of evidence are not before you.
Layard, A.-G.—In England, if in a criminal case evidence isimproperly rejected and a conviction ensues, the proper course isto set aside the conviction. Stephen’s Digest of the Law ofEvidence, Art. 148. And this is bo, notwithstanding that there wasother evidence before the court properly admitted and sufficientto warrant a conviction. Queen v. Gibson (18 L. R. Q. B. <537.) InIndia the rule of evidence is the same as in Ceylon. The principleof section 167 of the Indian. Evidence Act was applied in Impera-trix v. Pandharinath, I. L. R. 6 Bom. 34, and Queen-Empress v.O’Hara, I. L. R. 17 Calc. 642, and the conviction and sentence werereversed. In Imperatrix v. Pitambar Jina, 1. L. R. 2 Bom. 61,it was held that the High Court had power to review the wholecase and determine whether the rejection of evidence held to havebeen improperly admitted should have the effect of varying theresult of the trial, so that the conviction should be reversed. TheCeylon Criminal Procedure Code by section 355 ~(2) gives powerto the Supreme Court to reverse, affirm, or amend the judgment,or to make such other order as justice may require. The CourtsOrdinance by section 40 empowers the Supreme Court, in appealor in revision from any of the original Courts, to order a new trial.
Cur. mlv. vull.
1st August,. 1900. Lawrie, A.C.J.—
In the course of the trial of three men for murder at the Gallesessions before my brother Browne, when the third prisoner wasbeing examined as a witness in his own behalf, his counsel askedhim this question: " Were the first and second prisoners there?”
The learned judge refused to allow the question to be put.
The jury found the three accused guilty of murder, and theywere sentenced to death, and they are now in jail awaitingexecution.
The Attorney-General, acting under section 355 of the CriminalProcedure Code, on Saturday last submitted to this Court a
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certificate that he was oi opinion that the refusal of the judge toallow the question to be put raised a matter of law which oughtto be considered.
Since we received the certificate Mr. -Justice Browne has sent tous a special case on the same matter of law. My brother isabsent holding sessions at Batticaloa. and unfortunately we havenot the benefit of his assistance.
July 31 andAuffst 1.
I am of the opinion that the question was a proper question.The evidence of the third accused as to the presence or the absenceof the other two accused was relevant and should have beenadmitted. First, because it was relevant to the third accused’sdefence. His case was that he had been assaulted by several menand had, in the right of private defence, inflicted the wounds ofwhich the man afterwards died. He wished to prove that therewas no one near to support or help him, that he was in greaterperil of his life or of receiving grievous hurt than if he had thesupport of the other two prisoners, and so I am of the opinionthat the third accused was entitled to give evidence that they werenot with him. It was essential to his defence.
Secondly, if the question was put as part of the defence of thefirst and second prisoners, I see no good objection to it. Anaccused on his trial by our law is a competent witness in his ownbehalf, but that does not mean that he is to say nothing aboutothers. His right to give evidence on his own behalf involves theright to give a full account of what happened, to give every detail,to .mention the names of every one present, to state what»eachman did. If. in the course of giving that evidence in his ownbehalf, he states some fact which may tend to incidpate or toexculpate others, the evidence must., I think, be received. If whathe says amounts to a confession affecting himself and some othersjointly tried with him for the same offence, the Court is remindedby section 30 of the Evidence Ordinance that it shall not take intoconsideration such confession against the other accused, but thewhole evidence and confession must be received and recorded andmust go to the jury.
' The Ordinance further enacts that a prisoner giving evidence inhis own behalf shall give it in the same manner ahd with the likeeffect and consequence as any' other witness. It cannot. I think,be doubted that the question “ were the first and second prisonersthere?” might have been put to each witness called by the Crown;to each witness called by the accused; and if it was legitimateevidence, if given by other witnesses, I cannot see why it shouldbe held to be inadmissible evidence when given by one of theprisoners.
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1901. Holding as I do that the question was a proper one, I am boundJuly 31 and to set aside the conviction and judgment of the Court. The 167thAugust l. Bect,ioll of the Evidence Ordinance enacts that the improper rejec-Lawrie, tion of evidence shall not be ground of itself for a new trial, or
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-reversal of any “ decision in any case, if it shall appear to the Court
before which such objection is raised that if the rejected evidence. had been received it ought not to have varied the decision. ’ ’
It is impossible to hold that, if the evidence rejected at this trialhad been received, it ought not to have varied the decision.
If the third accused had answered the question in the negativewith such a ring of truth that the jury believed him, if he had inexamination and cross-examination given unshaken testimonythat he was alone and unprotected, and that the other two men hadnothing whatever to do with the quarrel which ended in the man’sdeath, the verdict might have been one of acquittal.
Having decided to set aside the judgment, it became our dutycarefully to consider whether the order now to be made by usshould be an order acquitting the prisoners, or should be an orderfor a new trial.
The time at my command has been short. I have not been able-very carefully to consider the evidence, but I have read the reportof my learned brother, and I am satisfied that a strong case wasmade against these three prisoners—a case so strong that thejudge called on the accused for their defence. The evidence soimpressed the jury that they returned a unanimous verdict ofguilty.
I therefore think it would not be right to acquit them. Theproper course is to order a new trial, 1 will not say necessarily onthe same indictment. The Attorney-General, having the record ofthe evidence taken at the trial before my brother Browne, willconsider whether these, three accused ought again to be triedtogether; whether the charge against all should be one of murder.Indeed, while I think the proper order to make is an order for anew trial, I do not wish to fetter the hands of the Attorney-General, on whom vests the responsibility of deciding whether hewill again present an indictment against these prisoners.
The prisoners shall remain in custody until released by orderof a competent authority.
•When we speak of a . party to a suit giving evidence on his ownbehalf, or of a witness giving evidence on his behalf, the ordinarymeaning of the expression is that the party puts himself in thebox and gives such evidence as he thinks fit on his own side, and
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that he enlU his witness for the purpose of strengthening his1901.
case. That is to say, to call a witness to give evidence in your ** ^
behalf is amply to put him in the box. ft may be that toe
evidence of toe party or his witness is very adverse to his owncontention, and possibly it may be in favour of somebody eke, oreven of toe other party in toe suit. But it is not thereforeexcluded as evidence, and questions may be put. and toe answersof an adverse character elicited by them are admissible. It istone that in England a party may not cross-examine bis ownwitnesses unless hostile, but section 154 of our EvidenceOrdinance has released him from that restriction. I do not thinktome is anything in toe circumstances of this ease, or in thelanguage of seetion 120 of toe Evidence Ordinance, to show thatany subtie meaning was to be attached to toe words ** givingevidence on his own behalf.' I tiierefore think that toe questionshould have been allowed.
The 167th section of the Evidence Ordinance forbids us toreverse a decision, or to order a new trial if we think that theevidence, even if it had been admitted, ought not to have variedtile decision of the jtunr. In order to be satisfied on that point wemust be satisfied also that toe jury could not reasonably havealtered their view if the rejected evidence had been admitted.
How we are to do that in some eases I do not clearly- understand:
-it may be difficult to say how that question is to be answered. Wedo not know what the answer might have been if the question hadbeen put. and we cannot say to what results that answer mighthare led in toe course off toe further examination of toe witness.
1 am therefore of opinion that the exclusion of this evidencejustifies us in setting aside toe verdict of toe Jury. And inas-much as we have, in my opinion, power to set aside the dectsiouor, if we think fit. to acquit, and inasmuch as toe evidence in tiieease is such as toe Chief Justice describes it to he, I agree to theorder he has m&ated.
«>—J. X- A 6S116 <JC/;«|
KING v. THEGIS et al