The Queen v. Saniin Singho
[In the Cotjbt of Gbimenal Appeal]
1862 Present: Basnayake, GJ. (President), Herat, J., andG. P. A. Silva, J.THE QUEEN v. K. A. SANTIN SINGHOAppeal No. 57 of 1962, with Application No. 61S. C. 250/61—M. C. Colombo,'44489jB
Circumstantial evidence—Burden of proof—Summing-up—Misdirection.
In a case of circumstantial evidence, a direction given by the trial Judge,in his summing-up, that the accused person must explain each and everyciroumstance established by the prosecution is wrong and would completelynegative a direction given earlier by him that the circumstances must not onlybe consistent with the acoused person’s guilt but should also be inconsistentwith his innocence.
The direction that if a prima facie oase is made out the accused is bound toexplain is wrong and misleading.
Appeal against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with 8. S. Basnayalce, R. Weerahoort and M. Raja-singham, (assigned), for Accused-Appellant.
P. Colin-Thome, Crown Counsel, for Attorney-General.
446BASNAYAEB, O.J.—The Quern «. Smith Bmgho
October 16, 1962. Basnaya£», C.J.—
The appellant was by a unanimous verdict of the jury found guilty ofthe murder of Heemnulle Axachohige Yasawathie and sentenced to death.The case against the appellant rested on circumstantial evidence. Theappeal is from that verdict. The grounds urged in the notice of appealfall under the broad heads of misdirection and illegal reception of evidence.
Shortly the facts are as follows :—The appellant and the deceased wereservants employed under George Wijesinghe, proprietory planter ofCotta Road, Borella. The former was his motor car driver and thelatter was his cook. The appellant had been two years in his serviceand the latter had been two months. Before her, the appellant’smistress Alice had been the cook. The other servants in the house werean old man called Agoris and a thirteen year old girl called Magilin.Agoris was a trusted servant who had been about 5 years in the household.The deceased had complained to her mistress about the unseemlybehaviour of the accused in trying to enter the bath-room one morningwhen she was in it, but no action was taken on that complaint.
There is also the evidence of two employees—Jamis and Siyadoris—ofthe Wijesinghe household in which the appellant and the deceased wereboth employed. To each of them the appellant had mentioned the bathroom incident; and to one of them he had said that Yasawathie wasa proud girl and to the other he had said that she was not a person towhom one should speak and that he would not allow her to remain therefor long. To one of them he had also mentioned an incident in whichthe deceased was seen speaking to a man over the parapet wall, and tothe other he had mentioned an incident in which she was seen speakingto a man near the bath room. All these circumstances, if established,would point to ill-will on the part of the appellant towards the deceased.
Agoris shared the room at the back of the garage -with the appellant.After his noon meal on the day in question when Agoris wanted to havea chew of betel, to slice an arecanut, he looked for his knife which hehad concealed under the bench, but it was missing. He stated in hisevidence that only the appellant knew where it was kept and that theappellant also used that knife whenever he needed it. On the day ofthe murder the appellant had returned after two days’ leave and haddriven his master’s car to Colpetty and returned home about 9.30 a.m.He had brought with Mm a lunch packet and had his noon-day mealthere. After the members of the household had had their lunch, theyrested. The servants finished their meals that day about 12-30 p.m.The deceased went to the bath room to bathe and Magilin, the otherservant, heard the splashing of water and inferred that she was bathing.When she went to the front compound at about 12.30 p.m. the accusedwas seen going past her towards the gate and within five minutes Magilindiscovered that Yasawathie had been stabbed to death. Mr. and Mrs.Wijesinghe were informed. The first reaction of the former was to sendfor the driver not because he suspected him but because he wanted hi
BASNAYAKE, C.J.—The Queen v. Saniin Singho447
assistance in finding out what had happened to the deceased. Whenhe was informed by Magilin that the appellant had just gone out he askedAgoris to fetch a taxi cab, but before he could do so the appellant returned.He then instructed Agoris and the appellant to see what had happenedto the deceased and whether she was alive. They went into the bathroom and attempted to bring out the body, the appellant holding herlegs and Agoris holding the neck. They brought it as far as the entranceand discovered that she was dead. Mr. Wijesinghe sent the appellantto fetch the doctor from the Fatima Clinic which was near by. He wentto the clinic and returned to say that the doctor was not there. He wasasked to inform the police. He drove to the Police Station in his master’scar and stated—“ I am the driver employed at this house. The cookwoman of this house has fallen down in the bath room with bleedinginjuries. She is unable to speak. I am not aware what has happened.”The Borella Police commenced their investigations on this complaint andin the course of the investigations the appellant was arrested.
The prosecution relied on the following circumstances :—The incidentin the bath-room two weeks earlier and the threat uttered by the appellant;the fact that he had gone to the hotel at a time which was not the usualtime at which he went there for his noon meal; the fact that he washedhis hands up to the elbows in the water tank at the back of the hotelnear the kitchen with his wrist watch on ; the fact that he had blood stainson his outer sarong ; the fact that Magilin discovered the deceased stabbedto death shortly after the appellant had passed her on his way out;the fact that he used the name Yasawathie as the nom de plume for theGymkhana sweep ticket he had purchased ; the fact that Agoris’s knifewas missing and that to Agoris’s knowledge the appellant was the onlyperson who knew where he placed it; the disparaging remarks about thedeceased uttered by the appellant to Siyadoris such as, “ Yasawathie is nota woman whom anyone should speak to. She abused me in the bath-room. She does not deserve to be spoken to. I will not let her stayhere ” ; the complaints made to Jamis that Yasawathie spoke to a man.over the parapet wall; that the deceased abused and chased him awaywhen he went to the bath-room ; that she was a proud girl.
It is fundamental that the burden of proof is on the prosecution.Whether the evidence the prosecution relies on is direct or circumstantial,the burden is the same. This burden is not altered by the failure of tbeappellant to give evidence and explain the circumstances. Tbe maincomplaint of the appellant is against the summing-up of the learnedCommissioner. There are many passages in the summing-up which arecapable of giving the jury a wrong impression of the law. In dealingwith the burden of proof the learned Commissioner said—
“ Now, I shall tell you about the burden of proof in a criminal case.There is always the presumption of innocence of an accused person.An accused person is presumed to be innocent unless and until hisguilt is proved beyond reasonable doubt. So that, when an indictmenti8 presented against an accused, and he has pleaded not guilty of the
BASHAYAE3B, C.J,—The Quean a. Santis* Stnyho
offence, if is open bo him to do one of three things, nsanely, to stay thereas he has done in this case and say in effect,' yon prove my guilt beyondreasonable doubt Then, there is another course open to him and
that would be to make a statement from the dock. But then, in thatevent, his statement cannot be tested by cross-examination. And, youare not bound to take that statement at its face value. A third courseis also open to him. That is, namely, that he can give evidence onhis own behalf. In that event he would be subject to cross-examinationand his evidence would be tested by cross-examination ; whetherhe is speaking the truth or not. That of course the accused has notdone in this case. You will see that the law allows him the rightto give evidenoe, but he is not compelled to give evidence or to evenmake a statement.”
The learned Commissioner after having discussed certain judicial dictaon circumstantial evidence stated—
“ To repeat myself on this matter about the principle that is appli-cable. This case, as I see, is a case of circumstantial evidence and, Igive you this direction which I think will be of assistance to you : Youmust not convict the prisoner because the circumstances of the caseare consistent with his guilt. That is not enough. You will onlyconvict the prisoner if in your opinion the circumstances of the caseare inconsistent with any real or rational conclusion other than thathe is the man who killed.”
Then after discussing the evidence in detail he went on to say—
“ Now, I have told you about the principles that are applicableto circumstantial evidence. I told you that you must come to theirresistible conclusion that it was this accused who did it and thatit is inconsistent with any reasonable hypothesis other than that ofhis innocence. In certain cases in circumstantial evidence there isanother principle also which is applicable. I think the learned counselfor the defence read a passage to you-—a statement of Lord Ellenboroughand he stopped half way. Well, I son going to read to you the entirepassage. That is the principle that is also applicable in certain casesof circumstantial evidence. That principle has not only been recognisedin England, but also that has been recognised in Ceylon and has beenadopted by our Courts. That case that I read to you earlier that isthe submissions made by two learned counsel, I told you, in the Courtof Criminal Appeal, and how their Lordships dealt with those submis-sions. It was also held there: " The jury are entitled to draw inferencesunfavourable to an accused where he is not oalled to establish aninnocent explanation of evidence given by the prosecution which,without such explanation, tells for his guilt.
The rule regarding circumstantial evidence and its effect, if notexplained by the accused, is admirably stated in the judgment ofChief Justice Shaw in an American case—Commonwealth v, Webster—■quoted in Ameer AW a ‘ Law of Evidence * Where probable proof
BASNAYAKE, C. J.—The Queen v. Santin Singho
is brought of a statement of facts tending to criminate the accused,the absence of evidence tending to a contrary conclusion is to beconsidered though not alone entitled to much weight, because theburden of proof lies on the accuser to make out the whole case bysubstantive evidence. But when pretty stringent proof of circumstanceis produced, tending to support the charge, and it is apparent thatthe accused is so situated that he could offer evidence of all the factsand circumstances as they exist, and show, if such was the truth, thatthe suspicious circumstance can be accounted for consistently withhis innocence and he fails to offe • such proof, the natural conclusionis such that the proof, if produced, instead of rebutting, would tend tosustain the charge
Another passage in Willis on Circumstantial Evidence also has beenquoted here. Lord Chief Justice Abbott said this : ‘ It follows fromthe very nature of circumstantial evidence, that in drawing an inferenceor conclusion as to the existence of a particular fact from other factsthat are proved, regard must always be had to the nature of theparticular case, and the facility that appears to be afforded either ofexplanation or contradiction.*'
Lord Ellenborough said, ‘ No person accused of a crime is bound tooffer any explanation of his conduct, or of circumstance of suspicionwhich attach to him ; but, nevertheless, if he refuses to do so, wherea strong prima facie case has been made out, and when it is in his ownpower to offer evidence, if such exist, in explanation of such suspiciousappearance which would show them to be fallacious and explicableconsistently with his innocence, it is a reasonable and justifiableconclusion that he refrains from doing so only from the convictionthat the evidence so suppressed or adduced would operate adverselyto his interest.
What is meant by * prima facie ’ ? Prime facie is arising at first sightor based on the first impression. That is, if arising from the firstsight or based on the first impression a strong case has been made out,then it was within his power to make a certain explanation, and if herefrains from doing so this dictum of Lord Ellenborough would apply.
One of the circumstances which the Crown wants you to considerand ask yourselves is this : Why the accused refrained from going forlunch at the usual hour, between 12 and 1, to the hotel where he usedto take his rice and curry. If jou consider that proved only anexplanation would be necessary. You may ask yourselves, is it notin the power of the accused to offer an explanation ? If so, why doeshe refrain from doing so ? Similar questions you will ask yourselveswith regard to other points. Or, may be, there are other circumstanceswhich strike you as calling for explanations. That is entirely a matterfor you. You are the sole judges of every fact.”
BASNAYAKE, C.J.—The Qtum v. Berlin Stofho
The learned Commissioner next proceeded to refer to the loss of Agoris’eknife ; the appellant’s leaving the premises at the time be left; his goingto the rear of the hotel and going to the lavatory of the hotel, his notusing the lavatory of the bungalow ; his washing his hands up to theelbow with the wrist watch on ; his running to fetch the doctor and hisreturning even without attempting to fetch another doctor ; his wearingtwo sarongs. He then proceeded as follows :—
“ Now, it is not in every case that an explanation is called for. Ihave explained to you that in cases of circumstantial evidence if youfind certain circumstances have been established, the circumstanoe3which require explanation are only those circumstances. If theyare not established, then you do not take them into consideration atall. Then, you are entitled to take that fact also into considerationin arriving at your finding, that you should not run away with theidea that it is conclusive against the accused.”
The directions of the learned Commissioner in regard to an accusedperson’s obligation to explain each and every circumstance relied on bythe prosecution is wrong and completely negatives the direction he hadgiven earlier that the circumstances must not only be consistent with hisguilt but should also be inconsistent with his innocence.
The direction that if a prima facie, case was made out the accused wasbound to explain is wrong and misleading.
The judicial dicta cited to the jury introduce the concept of a primafacie case which finds no place in our Evidence Ordinance. It is nowwell settled that the burden on the prosecution is to prove the caseagainst the accused beyond reasonable doubt. That burden is notlessened by the fact that the accused does not give evidence. It remainsthe same throughout the trial. We cannot be certain that what was saidin the passages cited above did not lead the jury to think that thestandard of proof required of the prosecution was something less thanproof beyond reasonable doubt. The concept of a “prima facie ” caseis well known in the field of preliminary inquiry prior to committal fortrial where the question is one of sufficiency of evidence. For instanceunder section 156 of the Criminal Procedure Code, before its amendmentin 1938, a Magistrate holding an inquiry under Chapter XVI into anoffence not triable summarily was empowered to discharge the accusedif the evidence did not establish a prima facie case of guilt and if tbeevidence did establish a prima facie case of guilt the Magistrate wasempowered to take the further steps proscribed in that Chapter. Theexpression when used in a direction, to the jury in a criminal trial isout of place and is likely to confuse the jury as to the burden that lieson the prosecution. The view expressed above is fortified by the discus-sion of the expressions “prima facie evidence” and ”prima faciecase ” in section 2494 of Wigroore on Evidence and the cases referred totherein. For the reasons herein expressed we think that the appealshould be allowed, that the conviction should be quashed and a judgmentof acquittal entered, We accordingly do so.
THE QUEEN v. K. A. SANTIN SINGHO