( 45 )
QUEEN v. PIANERIS el al.
D. C., KahUara, 572.
Cjpunter criminal cases—Duty of Judge to hear each case in full and givejudgment upon evidence called—Criminal Procedure Code, s. 352—Ordinance No. 1 of 1888, s. 16—Necessity of calling upon accusedto explain points made against him.
Where there are counter cases between the same parties, it is theduty of the Judge to hear each case in full and give judgment uponthe evidence called therein for the prosecution and defence, withoutdeferring judgment until he had heard the counter case.
It would be irregular to import into one case the knowledge whichhe may have obtained from another case.
The record must show that each of the accused was clearlyinformed of his right to make a statement under section 352 of theProcedure Code, and. they ought to be asked to explain any pointsmade against them, as required by OrdinanceNo. 1 of 1888,section 16.
OIX accused persons were indicted, some under section 317 of^ the Penal Code for voluntarily causing grievous hurt bymeans of an instrument for cutting, some under section 316 for
July 31 andSeptember
( 4li )
1894. voluntarily causing grievous hurt. and some under section 315 forJuly 31 and voluntarily causing hurt. After the District Judge had heardSeptember s. evideaoe for thte prosecution and defence, he refrained from givingb:‘ : "’graent and proceeded to hear the counter case between thesame parties. Then he delivered the following judgment:—
“ This and District Court case 573 are clearly connected, and in“ my opinion relate to one and the same fight, in which both sides“ were more or less injured. A rape case (probably false) led to“ mutual recriminations on the road as the parties thereto returned“ from Court, and on reaching the village a general fight took place
“There are several improbable and suspicious, circum-
“ stances in the version of the complainant’s party in District Court
“ 573 I find all the six accused guilty : the first under
“ section 317 of assault on Ley Sinho and Podi Sinho ; the second“ under section 316 of assault on Sayohami; the third under“ section 316 of assault on Davit Sinho,” &c. And they weresentenced to different terms of imprisonment.
Dornhorst appeared for appellants.
De Saram, C.G., for the Crown.
31st July, 1894. Bonser, C.J.—
• The appellants were found guilty of an offence not known to thelaw, of assault under sections 316 and 317 of the Penal Code. Butthere is a still more serious irregularity. The District Judge, insteadof deciding this case upon the evidence called in the case itself,deferred his judgment until he had heard some other case, and gavejudgment thereafter in accordance with the impression produced inhis mind by the facts of the other case. The duty of a Judge actingas a jury is to decide a case upon the evidence and the evidence only,and not to import into one case the knowledge which he may haveobtained from another case. Each case must be decided on its ownmerits.
The judgment of the District Court is set aside and case remittedfor re-trial.
At the re-trial the Court heard five witnesses and recorded asfollows :—
“ The several statements made by the accused before the Police“ Magistrate are once more put in evidence. They make no further“ statement.”
( 47 )
It then proceeded to give judgment on the footing of the evidence 1S94<heard at the re-trial, and found all the accused guilty and sentenced July 31 andthem to various punishments.September S.
The accused appealed.
Domhorst, for appellants.
Cooke, C.C., for the Crown.
5th September, 1894. Withers, J.—
I must send this case back once more to the District Judge whotried it, as I am not satisfied from the record that each-of the accusedwas clearly informed of his right to make a statement under section352 of the Procedure Code. It certainly does not appear from therecord that the accused were severally asked to explain any pointsmade against them as required by Ordinance 1 of 1888, section 16.
It is absolutely essential in every criminal case that the accusedshould have an opportunity of explaining the points made againsthim, or of stating what he desires to offer by way of explanation,and that he should be clearly made to understand that thatopportunity is offered to him.
A jury may always take into consideration a statement by aprisoner which reasonably accounts for a state of things whichotherwise would not be explicable. But, in this particular case,judging from the first petition of appeal presented to this Court,
I cannot help thinking that the accused relied for their defence onfacts disclosed in a counter case to which they refer in their petitionof appeal. Now, the deposition in that case can be made no useof in the present appeal.
I think the accused ought, if they desire it, to have an opportunityof calling for their defence the witnesses who testified on their sidein the counter case.
I therefore remitj the case in order that the accused may be askedeither -to explain the points against them or clearly informed oftheir right to make such a statement as is provided for by section352 of the Criminal Procedure Code, or both, and to give them anopportunity of calling witnesses in their own behalf. I refer inparticular to the witnesses called by them in the counter case.
I quash the conviction against them, and send the case back forre-trial from the close of the prosecution.
QUEEN v. PIANERIS et al