HOWARD C.J.—The King v. Govinda Pulie.
[Court of Criminal Appeal.]
1940 Present : Howard CJ., Moseley S.PJ., and Wijeyewardene J.
THE KING v. GOVINDA PULLE.45—M. C. Colombo, 45,900.
Evidence of character of accused after conviction—Right of Court to act uponan unsworn statement of witness—English practice—Desirability oftaking evidence on oath.
There is nothing in law which prohibits a Court from receiving, beforepassing sentence, unsworn evidence regarding the character of an accusedwho has been convicted, although it is desirable that such evidence shouldbe tendered on oath.‘
Nikapota v. Gunasekere (14 N. L. R. 213) referred to.
PPEAL from a conviction for culpable homicide not amounting tomurder before a Judge and Jury in the Western Circuit.
P. S. W. Abeywardene, for accused, appellant.
E. H. T. Gunasekere, C.C., for Crown, respondent.
Cur. adv. wilt.
August 28, 1940. Howard C.J.—
This is an appeal against a sentence of ten years’ rigorous imprisonmentpassed by Mr. Justice Cannon on the accused for the offence of culpablehomicide not amounting to murder.
Counsel for the appellant lias argued that this sentence is harsh andexcessive and that in passing it the Judge has been-influenced by certainevidence with regard to the character of the accused given by InspectorSheddon. He also objects to that evidence on the ground that it was not* given on oath.
HOWARD C.J.—The King v. Govinda Pulle.
The question of whether such evidence should be given and whether itshould be given on oath was considered by Middleton J. and Wood-Renton J. in the case of Nikapota v. Gunasekere.l The Judges in that caseheld that there was a casus omissus in the Evidence Ordinance and thatthey were entitled to have regard to the law of England with regard tothe evidence of character of an accused person tendered after he has beenconvicted. The law in England on this point was laid down by the LordChief Justice of England in Weaver’s case, 1908, 1 Criminal AppealReports 13. The principle was laid down by the Lord Chief Justice asfollows: —
“In considering sentences, the invariable practice is to inquire intothe prisoner’s history in his own interest and if in the course of thatinquiry facts come out which damage him, the Judge ought to takenotice of them.”
In adopting this practice, Wood-Renton J. said that he need scarcelyadd that any investigation conducted by a Court of trial, after conviction,into the character and antecedents of an accused should be an investi-gation according to the rules of evidence. Middleton J. stated that inhis opinion no evidence to prove the antecedents and bad character of anaccused should be accepted by the Police Court except from persons ofundeniable position and respectability and then also only under thesanction of an oath or affirmation.
Our attention has been invited by Mr. Gunasekere to certain Englishcases which formulate the practice adopted in this connection by EnglishCourts. It would appear from those cases that it is the practice of Judgesof the High Court in England after the verdict has been given by the juryto receive unsworn evidence as to the character of the person who hasbeen convicted.
In these circumstances we do not feel that we can go so far as to adopt inwhole the dicta of the Judges in the case of Nikapota v. Gunasekere (supra)with regard to the necessity for the evidence of character of an accusedperson to be on oath. At the same time we feel that it is very desirablethat such evidence should be tendered and tendered only on oath.
Quite apart from the evidence given by the Inspector with regard tothe previous character of the accused, we have given consideration to thefacts of this case. It has been pointed out by Counsel for the appellantthat the jury have not registered their opinion as to whether the offencewas committed with intention or merely with knowledge. Havingregard to the fact that the accused used a knife which he thrust into avital part of the body of the deceased, we are of opinion that this questionis not of material interest.
Having regard to the facts of this case which was one of extremegravity, we do not feel disposed to interfere with the sentence which wasfully merited. In these circumstances, the appeal against the sentence
1 14 N. L. R. 213.
THE KING v. GOVINDA PULLE