Fernando v. The Queen
[COTJBT CF CbTTVTTN’AL APPEAL]
1953 Present : Rose C.J. (President), Nagalingam S.P.J. and
K.D. de Silva J.
S'. S. FERNANDO, Appellant, and THE QUEEN, RespondentAppeal No. 46, with Application No. 82S. C. 3—M. C. Panadure, 24,458
Evidence—Indictable offence—Statement made by a witness at non-summary inquiry
Evidentiary value of it at trial.
When a statement made by a witness at a non-summary inquiry is denied byhim at the trial of the accused, it cannot be used as substantive evidence.
-^^-PPEAL, with application for leave to appeal, against a conviction-in a trial before the Supreme Court.
A. C. Nadarajah, with H. L. de Silva, for the accused appellant.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult~
(1927) C. P. D. 8.
NAGAI/TXGAM S/P.J.—Fernando v. The Queen
September 13. 1953. ^STagalestgam S.P.J.—
At the conclusion of the argument of this appeal we set aside theconviction and acquitted the accused and stated that we would give ourreasons later. We now proceed to do so.
The prisoner was indicted on a charge of murder. The evidence reliedupon by the prosecution was that of three witnesses each of whom was putforward as an eye-witness, but during the course of the trial it becameapparent that not one of them was a credible witness and that the evidenceof each one of them was so full of infirmities and improbabilities that noreliance could safely have been placed upon their _ testimony; in theresult the learned trial Judge took the view which was expressed by himthus after dealing specifically with the nature and character of the evidencegiven by each of them :
“ Then you have no evidence of an eye-witness to say that it was theaccused who committed this offence. ”
The learned trial Judge would seem to have formed this opinion ofthese witnesses, if not earlier, at least at the stage when from the Crownpoint of view all the material evidence which the prosecution could withadvantage place before the Court had been led ; for when all that remainedto be done by the prosecution was to close its case, the learned Judgeintervened and recalled Mitchel, one of the alleged eye-witnesses, andquestioned him with regard to certain statements made by him at theMagisterial inquiry. In answer to Court that witness said :
“ I remember that the accused put to me that I and the deceasedwent to his house to assault him …. It was put to me thatthe deceased had a crow bar in his hand when he went. I denied that.It ioos not suggested that the accused snatched the crow bar and struck thedeceased on his head. I do not remember the suggestion being put in theform that the deceased had a crow bar and that the accused snatched it andstruck the deceased on his head with it. ”
With a view to contradict this evidence the Clerk of Assize was called toprove the following statement made by the witness at the Magisterialproceedings :
“ I deny that the deceased had a crow bar in his hand, and that theaccused snatched the crow bar and struck the deceased with it a blowon the head. ”
In the course of his address to the Jury the learned trial Judge, afterhaving indicated to the Jury that the evidence of the eye-witness wasunacceptable, proceeded to charge them as follows :
“ If on a consideration of the evidence of the witnesses you are notprepared to accept that evidence, you are left with other evidence towhich I shall refer. ”
3S3AGATjT~N~G-AM S.P.J.—Fernando v. The Queen
Anri the “ other evidence ” the learned Judge referred to was no otherthan the statement made by the witness Mitchel in the Magistrate’s Court,,to which he adverted in the following words :
“ When the Magistrate started the inquiry at the hospital, the-accused who was undefended cross-examined Mitchel, and in the_ course of that cross-examination the accused suggested to Mitchel thathe (Mitchel) and the deceased entered the accused’s house, the deceasedbeing armed with a crow bar, and when they were about to assault theaccused, the accused snatched the crow bar from the deceased andstruck the deceased with it. ”
Emphasis was further given to this aspect by another passage in* thesumming up :
“ The suggestion made, or at least the reasonable inference one maydraw (from the statement made to the Magistrate) is that the accusedtook the weapon which the deceased had …. and struck thedeceased with it on the head. That statement was elicited by me,and it was no part of the Crown case. ”
The ground urged on appeal is that the use of this' ‘ other evidence ”was improper and not warranted by law for more than one reason, andthat the Jury were swayed in arriving at their verdict by this “ otherevidence To put it at the lowest, clearly an improper use was made ofthe statement given by the witness before the Magistrate. It is to be-remembered that the witness denied that any suggestion was made tohim by the accused that he (the accused) had snatched a crow bar fromthe deceased and struck the deceased with it. Notwithstanding thisdenial, which was the only evidence of the witness before Court, thecontrary was sought to be established by drawing two deductionssuccessively from the statement proved to have been made by the witnessbefore the Magistrate. The first deduction was a postulation of theform of the question in answer to which that statement was deemed tohave been made. The second deduction was an inference that was saidto arise from the form of the question so deduced.‘
The learned Judge dealt with this topic in this way :
“ The question put by the accused must have been, ‘ Did not the-deceased have a crow bar in his hand and I snatch it and strike thedeceased with it a blow on his head ? ’ If that was the question put,is it not an admission by the accused that he was the person who struckthe deceased ? Is that not the reasonable inference to be drawn % ”
The statement made by the witness before the Magistrate could have-been proved at the trial only for the purpose of contradicting him, but thestatement itself could not have been used as substantive evidence ; butthat was precisely the effect of what was done. It was only on the basisthat that statement was legal evidence upon which the Jury could act,that it was <possible to hypothesize the form of the question therefrom(which was the first deduction made) and then to infer from the form ofthe question so hypothesized an admission on the part of the accusedthat he had inflicted the injuries on the deceased- (the second deduction) –
Thomas Singho S. I. Police, Gampaha
.Furthermore, it is needless to say that a variety of reasons may underliethe propounding of a question in cross-examination, and the cross-examination conducted by an accused in person should not receive lessfavourable treatment than if it had been conducted by counsel on hisbehalf.
We do not therefore think that in the first place the statement madeby the witness at the Magisterial inquiry should have been treated assubstantive evidence in the case, nor do we think that it was proper forthe first and second deductions to have been drawn therefrom.
The next point to which attention has to be directed is as to what theeffect of the use of the evidence in this manner has been on the trial of theprisoner. The ultimate position was that while the evidence of theprosecution witnesses other than what was objected to failed to establishthat it was the accused who inflicted the injuries on the deceased, thesecond deduction referred to above was placed before the Jury asestablishing “ an admission by the accused that he was the person whostruck the deceased”. That the Jury laid very great emphasis on thestatement made by the witness before the Magistrate and that thatstatement must have loomed large in their deliberations is fairly obviousfrom what transpired after the learned Judge had concluded his summingup. The only admissible evidence in the case is such that a reasonableJury properly directed could not but have come to the conclusion that thecharge against the prisoner had not been established.
Having regard to these considerations, we arrived at the view that theconviction could not be sustained.
S. S. FERNANDO, Appellant, and THE QUEEN , Respondent