Dharmadasa, v. The Queen
[Court of Criminal Appeal]
1967 Present: T. S. Fernando, A.C.J. (President), Abeyesundere, J_
and Manicavasagar, J.
M. DHARAtADASA and others, Appellants, and THE QUEEN,
C. C. A. Appeals 125 to 127 of 19G7 (vrrn Applications Nos.
1G7 to 1G9)
S. C. 174/1966—JU. 0. Horana, 419SS
In a enso ■where corroborative evidence is required, tho Court must not leaveto the jury as corroborative evidence some evidence which is not capable ofamounting in law to corroboration.
./.PPEALS, with applications, against certain convictions at a trialbefore the Supreme Court.
E. R. S. R. Coomaraswamy, with Anil Obeyesekere, Kumar Ameresekere,
U.de Z. Gunaimrdene, N. Wijenathan, O. Chakradaran, P. P. S. Fernandoand P. A. de Z. Karunaratne (assigned), for the accused-appellants.
E. R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
T. S. FERXANDO, A.C.J.—Dharmadaaa v. The Queen
December 2, 1967. T. S. Fekxaxdo, A.C.J.—
'Ihe three appellants as the 1st, 2nd and 4th accused and another man,Karunatilleke, as the 3rd accused stood their trial before a judge andjury on an indictment containing three charges which alleged that allfour of them committed the offences of (1) house-breaking by night(s. 443), (2) theft (s. 3C9) and (3) rape on one Karunawathic (s. 364) ofthe Penal Code. At the conclusion of a lengthy trial the jury by aunanimous verdict found the 1st, 2nd and 4th accused (the appellants)guilty on all three charges in the indictment and the 3rd accused notguilty of any offence.
In regard to the appeal of the 1st accused, who was well-known to thewoman Karunawathie, the jury had before them the evidence of thewoman herself who claimed to have identified him as a person -whobroke into her house on the night in question as well as the evidence ofcertain injuries found on the person of the 1st accused which could havetended to corroborate the woman’s ^evidence that he was one of thepersons who had forcible sexual intercourse with her. We found noreason for interfering in any way with the convictions of the 1st accusedor the sentences imposed upon him. We accordingly dismissed hisappeal.
A difficulty, however, arose in the case against the other appellants.As the 3rd accused was found not guilty of any offence, in spite of thewoman’s evidence that she identified not only the 1st accused but allthree other accused as well, it was contended that it was unreasonablefor the jury to have accepted her evidence implicating the 2nd and 4thaccused while refusing to accept her evidence implicating the 3rd accused^There appears, however, to be some ground for the jury to havedifferentiated between the cases of the 2nd and 4th accused on the onehand and that of the 3rd on the other. While the woman’s evidencein so far as it tended to implicate all the accused on the house-breakingand theft charges did not require corroboration, the learned judge,correctly in our opinion, directed the jury to look for corroboration ofher evidence before returning a verdict against the accused on thecharge of rape. While the judge in marshalling the evidence in the casepointed to some evidence as being capable of providing the necessarycorroboration in so far as it tended to incriminate the 2nd and 4thaccused, that evidence did not affect the 3rd accused. It is thereforeprobable that the jury, seeking corroboration so far as the charge of rapewas concerned, and not finding any tending to criminate the 3rd accusedfound him not guilty on that charge, and then somewhat illogicallywent on to find him not guilty on the other two charges as well. Noappeal is competent against an acquittal at a trial by jury, and we neednot, therefore, consider any further upon the present appeals thecorrectness of the verdict in respect of the 3rd accused.
Learned counsel for the appellants has, however, pointed to the natureof the directions given by the learned Commissioner who presided atthe trial in respect of the alleged corroboration, and contended that he
T. S. FERJs A2CDO, A.C.J.—Dharjnadasa v. The Queen
has here left to the jury as corroborative evidence some evidence whichis not capable of amounting in law to corroboration. The evidence soleft to the jury, while it may have tended in some slight measure to showthat tho 2nd and 4th accused were in the company of the 1st accusedon the evening in question, fell short of evidence tending to show thatrape was committed by these two accused persons. In tho case ofGoddard and Goddard 1 Chief Justice Lord Parker, after referring to thewell-known observations of Byrne J. in Zielinski's case 2 stated asfollows :
“ It is only right to say that in the experience of this Court thatprinciple is seldom followed ; indeed, if it is to be treated as a generalprinciple applicable to all cases of corroboration, this court feels thatit goes too far. Quite clearly, it is idle to give that direction simplicilerin a case where in fact there is no evidence capable of amounting tocorroboration because the very fact that the direction is given wouldleave the jury to infer that there was some evidence capable ofamounting to corroboration if the}' looked for it. Equally, if you geta case, as in many sexual cases, where there is a danger that the jurywill treat as corroboration sometliizig which is incairable of beingcorroboration, there must be a duty on the judge to explain to thejury what is not corroboration, as, for example, a complaint made bythe complainant. In the general run of cases, where there is evidencecapable of amounting to corroboration, the duty of the judge mustdepend on the exact facts of the case, bearing in mind that he certainlywould not be expected to refer to every piece of evidence which iscapable of amounting to corroboi’ation but, in general, in the judgmentof this court he should give a broad indication of the evidence which,the jury, if they accept it, may treat as corroboration.”
In respect of the two bits of evidence which we are satisfied couldnot be treated as corroborative of the woman’s complaint of rape inso far as they tended to criminate the 2nd and 4th accused, the trialjudge referred to them respectively as (1) “a matter you are entitledto take into consideration ” and (2) '* a matter you will take intoconsideration”. Pointing to an adequate direction given by the learnedjudge to the jury as to the circumstances in which they could convicton a charge of rape even where the woman’s evidence was uncorroborated,Crown Counsel invited us to affirm tlie convictions. Wc did not, however,find it possible to agree to this course of action as this Court cannot nowspeculate on the actual basis on which the jury did act in returning theverdict on the charge of rape. The jury may well have, in the light ofthe- judge’s directions, considered as corroborative evidence which wearo satisfied could not be doomed to bo such. For that reason, whileaffirming tho convictions and sentences imposed on tho 2nd and 4thaccused on the first two charges, wc have quashed their convictions andtho sentences imposed upon them on the 3rd charge.
Appeal of 1st accused dismissed.
Appeals of 2nd and dlh accused partly allowed.
1 (1962) 46 Cr. A. li. at p. 461.*(1050) 34 Cr. A. R. 193.
M. DHARMADASA and others, Appellants, and THE QUEEN, Respondent