HOWARD C.J.—The King v. Ranhamy.
[Court of Criminal Appeal.]
194#Present: Howard CJ., Mosley S.PJ., and Hearne J.
THE KING v. RANHAMY.
59—M. C. Anuradhapura, 2,708.
Court of Criminal Appeal—Power to take evidence in appeal—When the powershould be exercised—Court of Criminal Appeal Ordinance, No. 23 of1938, s. 10 (I) (b).
The Court of Criminal Appeal will allow evidence not called at thetrial to be taken in appeal where it is satisfied that the failure to producesuch evidence was due to ignorance on the part of the prisoner or to themistaken conduct of the case by the prisoner 'or his adviser.
PPEAL from a conviction before a judge and jury in the 1stMidland Circuit.
V. Panditha Gunawardene, for the accused, appellant.
Nihal Gunasekera, C.C., for the Crown.
September 9, 1940. Howard C.J.—
In this case Counsel for the appellant makes no complaint with regardto the charge of the learned Judge, nor does he complain of the verdictof the jury, having regard to the evidence which was before them. Onthe other hand, he contends that evidence should be submitted to thisCourt which was not called before the jury, if justice is to be done. Thatevidence consists of the testimony of Suddahamy, the father of the,appellant, who was accused with the appellant in the lower Court. Hewas in fact committed to take his trial before the Assize Court, but hiscase was not taken inasmuch as the Crown considered that the two mencould not be tried together. The other evidence which Counsel for theappellant submits should be before this Court is that of a woman calledMenikhamy, the mistress of the injured man. Her testimony wasbefore the lower Court, but the Crown did not call her in the Assize Court,nor was her name on the back of the indictment. The appellant alsodesires to call the evidence of a man called Wilson Singho, who, it isurged, can speak in support of the appellant’s alibi.
Now, to deal first of all with the evidence of Wilson Singho, we findthat no application was made by the appellant to call this witness in theiAssize Court, nor did he say at the time of the trial that he desired theevidence of this witness. In these circumstances, we are not preparedto make an order with regard to his evidence being produced before thisCourt.
The evidence of Menikhamy goes to show that the appellant was notpresent when the injured man was attacked. The third accused himselfin a statement to the Magistrate says that he was the person whoattacked the injured man with an axe on the night in question, and thatthe appellant was not present.
It is possible that if the evidence of these witnesses had been before thejury they might have come to a different decision. On the other hand,
The King v. Ranhamy.
if we allow that Evidence to be tendered to this Court we shall in effect besubstituting a trial by three Judges for a trial by jury. That is a coursewhich we are not prepared to follow unless justice requires it. The pointfor consideration, therefore, in this case is whether justice requires it.
The appellant, when he asked for leave to appeal in this case, statedthat he did not call these witnesses through ignorance. There may besomething in this plea. He might have anticipated that the evidence ofMenikhamy having been before the lower Court would also have beenbefore the Judge and jury ; also, that the third accused, his father, beingat his side in the dock would also have made the statement which he hadpreviously made before the Magistrate and which he confirmed when hewas asked in the lower Court whether he wished to say anything in hisdefence. In these circumstances, we think that these witnesses may nothave been called as the result of the mistaken conduct of the case by theappellant.
Following the decision in Rex v. Perry and Harvey', we think that theCourt ought not to be bound by any hard and fast rule never to allowfurther evidence to be called where the fact that it was not. called at thetrial was due to the mistaken conduct of the case by the prisoner or hisadviser.
We think that this is a case where it is plain that justice requires it, andwe think that the Court should interfere to protect the appellant from hisbad management of his case at the trial. We, therefore, order that thewitness Menikhamy and the third accused Suddahamy should be producedbefore this Court to give their evidence.
We further order that the case should be listed for September 23, andthat the evidence should be taken on that day. At the same time wegive leave to apply for a further date, if the necessity should arise.
THE KING v. RANHAMY