The King v. Duraisamy.
[Court of Criminal Appeal.]
1942Present: Heame, Keuneman, and de Kretser JJ.
THE KING v. DURAISAMY.
3—M. C. Jaffna, 17,071.
Burden of proof—Comment by Judge on failure of accused to give evidence—Evidence implicating accused—Reasonable doubt—Accused entitled tothe benefit of it whether he gave evidence or not—Failure of Judge topoint it out to Jury—Misdirection.
Where, in the course of the summing up, the Judge told the Jurythat “ on evidence being adduced, which implicated the accused, thefact that he had not given evidence entitled them to draw an inferenceagainst him “ without explaining to them the nature of the inference ;and where the Judge also told them “ that in deciding the Crown case,whether it had been established beyond reasonable doubt, they were totake notice that the prisoner had not given evidence at all ” withoutpointing out to them that the existence of a reasonable doubt enuredto the benefit of the accused, whether he gave evidence or not,—
Held, that the principle, that the standard of proof required in criminalcases remains constant, irrespective of the fact that the accused hasnot given evidence, may not have been properly appreciated by the Juryand that there had been a misdirection with regard to the burden ofproof.
PPEAL from a conviction by a Judge and Jury before the thirdNorthern Circuit.
A. H. C. de Silva (with him P. Ragupathy), for the appellant.—Theadverse comments made by the presiding Judge on the fact that theaccused had not given evidence were improper. Before any adversecomment can be made under section 296 of the Criminal ProcedureCode it should be made clear to the Jury that the prosecution has madeout a case. See the dictum of Lord Ellenborough cited in R. v. Seederde Silva1. Deficiencies in the case for the prosecution cannot besupplemented by the failure of the accused to give evidence. Thesumming-up should make it clear that the onus is on the prosecution—R. v. Amelia Hayton'; R. v. Heen Banda
H. T. Gunasekera, C.C., for the Crown.—There was no misdirection.The presiding Judge was entited to comment on the failure of the accusedto give evidence on his own behalf. The nature and degree of suchcomment must rest entirely in the discretion of the Judge—Ex parteKops'; Reg. v. Rhodes3; R. v. Voisin 0. The failure of accusedto give evidence may even approximate to corroboration—JaneBlatherwick
The summing-up was unexceptionable. It could not have given anyimpression to the Jury that the burden of proof was on the accused.
A. H. C. de Silva replied.
Cur. adv. vult.
> (1940) 41 X. h. B. 337 at 344.
3 18 Cr. App.R. 169.
3 (1941) 42 X7%. R. 53S.
* (1894) A.C. 650.
5 L. R. (1899) 1 Q.B. 77 at 83.8 13 Cr. App. R. 89.
■ 6 Cr. App. R- 281.
HEARNE J.—The King v. Duraisamy.
March 31, 1942. Hearne J.—
This is an appeal on questions of law.
The case for the prosecution was that the accused went to the houseof the deceased about 11 o’clock one night and assaulted him with astick while he was lying down in the hall of his house. One of theinjuries sustained by the deceased, who died about three weeks later,was an extensive fracture of the skull 6 in. in length. The accused wasfound guilty of murder.•
The only point of substance argued before us is in regard to thatportion of the summing-up in which the presiding Judge dealt with thefact that the accused had not given evidence.
“ I have told you ”, he said, “ that it is not for the prisoner to provehis innocence. But in deciding the Crown case, whether it has beenestablished beyond reasonable doubt, you will take notice of the factthat the prisoner has not given evidence at all ”. The learned Judgepointed out to the Jury that the prisoner was entitled to go into the•yitness box and asked V What is the answer?” adding “ There is noanswer by the prisoner -…. ” He referred to the evidence of
Marimuttu. called by the defence, and pointed out that, while it touchedthe evidence of Selliah, it did not challenge the evidence of Klyn, analleged eye-witness. He then went on “So, where there is evidenceadduced by the Crown which implicates the prisoner and the prisonerdoes not give evidence, you are entitled to draw an inference against himfrom that fact”. Once again he reminded the Jury that it was not‘‘for the prisoner to prove his innocence”, and added “no doubt,however, you will take into account that the prisoner has not givenevidence ”. “ In fact ”, he concluded. “ Mr. Ragupathy has takenconsiderable time in adducing evidence that it was somebody else whodid it, but he did not call the prisoner to say that he did not ”.
It was argued that when the Judge said “ there is no answer by theprisoner . . . . ” he should have pointed out that the accusedhad pleaded not guilty. This, we think, would have been superfluous.The Jury were well aware that the accused had pleaded not guilty andwhat was indicated to them was that he had not attempted to answer,by sworn evidence which he was entitled to give,' the facts which theprosecution had soirght to prove against him.
But the Judge did more than merely comment on the absence of theaccused from the witness box. He told the Jury that, on evidence beingadduced which implicated the accused, the fact that he had not givenevidence entitled them to draw an inference against him. He did notexplain to them the nature of the inference they could draw. He alsotold them that “ in deciding the Crown case, whether it has been estab-lished beyond reasonable doubt ”, they were to take notice that “ theprisoner has not given evidence at all ”. He did not point out that theexistence of a reasonable doubt enured to the benefit of the accusedwhether he gave evidence or not.
We have already said that it was well within the discretion of theJudge to comment on the fact that. the accused had not attempted,by giving evidence himself, to meet or “ answer ” the case against him
Dr. R. Saravanamuttu v. Joseph de Silva.243
that had been built up by the prosecution. It seems to us, however,that in the absence of an explanation of the nature of the inference theJury were “ entitled to draw ” against the accused as he had not givenevidence, they may have felt entitled to draw the inference that theprosecution evidence was true : while the other passage in the summing-up to which reference has been made suggests to us, and may havesuggested to the Jury, that if a reasonable doubt existed in regard to thecredibility of the prosecution case it might be resolved against theaccused by reason of the fact that he had not given evidence. At theleast we feel that the principle that the standard of proof required incriminal cases remains constant, irrespective of the fact that the accusedhas not given evidence, may not have been fully appreciated by theJury. It is true that the learned Judge gave a clear direction of lawwhen he said “ it is not for the prisoner to prove his innocence ” butwe think that this direction was probably obscured by the other directionshe gave.
In our opinion the appeal should be allowed and a fresh trial orderedbefore another Jury.
THE KING v. DURAISAMY