SANSONI, C.J.—The Queen v. Somapala
[Court of Criminal. Appeal]
1966 Present: Sansoni, C. J. (President), H. N. G. Fernando, S.P.J.,and T. S. Fernando, J.THE QUEEN v. M. A. SOMAPALA
C.C.A. 46 of 1966, with Application 71
S. C. 254/65—M. C. Horana, 39595
Evidence—Concession by prosecuting Counsel as to the truthfulness of a witness— Rightof the defence to the benefit of that concession—Evidence of good character of theaccused—Duty of Judge to refer to it in the summing-up.
The credibility of the accused-appellant, who gave evidence, was impeachedby the evidenco of two Crown witnesses but was supported by the evidence ofanother Crown witness W. Although the prosecuting Counsel conceded that theevidenco of W was truthful, the trial Judge directed the Jury to reject VV’sevidence.
Held, that the defence wns entitled to the benefit of the prosecuting Counsel’sadmission on the evidence led by the Crown. The trial Judge should not havedeprived the defence of that advantage.
Held further, that when an accused person gives ovidence of his goodcharacter it is the duty of the Judge to give direction to the Jury concerning it.
7.PPEAL against a conviction at a trial before the Supreme Court.
E. Chitty, Q.C., with H. L. Karawila, A. M. Coomaraswamy,M. Underwood, and O. C. Wanigasekera (Assigned), for the Accused-Appellant.
R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
October 29, 1966. Sansoni, C.J.—
The appellant was charged with the attempted murder of GamageBaba Nona on 2nd April 1965 by firing at her with a revolver. He wasfound guilty of causing grievous hurt, by a majority verdict of 5 to 2,and sentenced to 3 years’ rigorous imprisonment.
A prosecution witness Somapala said that at about 12.45 p.m. thatday he was walking with a dumb man called Jandi, when the appellantcame towards them riding a bicycle. The appellant, while seated onthe bicycle with one foot on the ground, questioned him about a complaintof assault made by him against the appellant on the previous day. He
SANSONI, C.J.—The Queen v. Somapala
then pulled out a revolver with his left hand from his trousers pocket.Somapala said that as he ducked, he heard the report of a shot. Hethen saw that Jandi had been shot in the chest. At that time Jandi’ssister Baba Nona came running up, and the appellant shot her.
Baba Nona in her evidence said that she ran up from her house onhearing Somapala cry out that Jandi had been shot. The appellantthen shot her. She saw Jandi lying fallen on the spot, and Somapalarunning away. Somapala is Baba Nona’s nephew.
The prosecution also called a witness, Wimalawathie, who said thatthe appellant came to her house at about 1.30 or 2 p.m. that day andgave her a revolver to keep. She took it to the house of a neighbourcalled Babynona. Babynona was not at home, and she left it in thathouse. Wimalawathie said that when she returned the appellant wasstill in her house. The Police arrived later and took him away. Undercross-examination she said that the appellant appeared to be afraid andin pain when he came to her house ; he told her that he had been chased,and that he had snatched the revolver from one Kalu Mahathmayaalias Dias, and brought it to her to keep. She also said that when thePolice came to her house and inquired where the appellant was, thelatter came out of his own accord and entered the Police jeep.
The appellant gave evidence on his own behalf. He said that Somapala,Jandi, Ivalumahathmaya alias Dias and others stopped him when hewas cycling home on the afternoon in question. Jandi hit him. Diastook something from his pocket, and the appellant then held his hand.They struggled and fell. Two shots went off during this struggle. Therevolver produced came into his hand and he ran to Wimalawathie’shouse and told her that he took it from Kalumahathmaya al as Dias andasked her to keep it. When the Police Jeep arrived later he was in thathouse and he went up to it. He put his character in issue. He alsosaid that he had no grievance against either Somapala or Baba Nona.He had mud stains on his shirt due to his struggle with Dias, and he hadan injury on his hand which was caused by Jandi hitting him with astick in the course of his struggle.
It was for the Jury to decide which of these two versions they wouldaccept after the learned Commissioner had summed up the evidenceand directed them on the law. The first complaint made by Mr. Chittyagainst the summing-up is that the learned Commissioner was not entitledto ask the Jury to reject Wimalawathie’s evidence after Crown Counselhad asked them “ to accept what she says as a witness of truth
The passage in question reads as follows :—
“ Counsel for the defence, counsel for the prosecution, makesubmissions to you because you are the sole judges of fact, for you toconsider. You can consider them and if they appeal to you you adoptthem. If you do not, you reject them. They are not entitled to giveany opinion in regard to the witnesses, in regard to whether he is anacceptable witness or otherwise. That is a matter for you, Gentlemen-
SANSONI, C.J.—The Queen v. Somupala
Now, in the course of this case, counsel for the defence commentedthat in the course of his address, counsel for the Crown said in regardto Wimalawathie “ accept what she says as a witness of truth ”, andthat that means Counsel’s opinion is sthat she is a witness of truthThat is not a matter for Counsel, Gentlemen. It is for you. Youand you alone having seen and heard the witness, can come to theconclusion whether Wimalawathie is a witness of truth, or whetherevery other witness here is or is not a witness of truth. As I toldyou, Counsel’s opinion of a witness must bear no weight with youwith regard to credibility. That is a question for you, Gentlemen,entirely for you.
Now, Gentlemen, I mentioned that matter because it struck methat it might be useful to mention it, as I came to it at that particularpoint, but I might also tell you this, Gentlemen, here and now thatthe credibility of witnesses is a question of fact and that is a matterentirely for you.”
It seems to us that after Crown Counsel in his address to the Juryasked them to accept Wimalawathie as a truthful witness —and that,is what the words used mean — the appellant was entitled to the benefitof that concession. Crown Counsel, who must be presumed to knowthe strength of his case and the relevant facts, was entitled to choose toaccept Wimalawathie’s version on a disputed question of fact. Thedefence was entitled to the benefit of that admission on the evidenceled by the Crown. There was no need for the learned Commissioner todeprive the defence of that advantage.
It will be seen, from the short summary of the respective versionsalready given in this judgment, that according to Wimalawathie theappellant voluntarily surrendered to the Police when they arrived atWimalawathie’s house. She also said that the appellant already hadmud stains on his shirt when he arrived there. The prosecution, however,called two other witnesses, Police Sergeant Munasinghe and PoliceConstable Wijekoon, who gave an entirely different version as to whathappened when they arrived at Wimalawathie’s house. Munasinghesaid that when he inquired for the appellant, Wimalawathie said thathe had not come there. At that time, Munasinghe said, he saw theappellant running out from the rear of the house chased by Wijekoon.Wijekoon and the accused struggled, and Munasinghe then ran up andstruck the accused and took him into custody. Munasinghe denied thatthe appellant came voluntarily to the jeep. Wijekoon gave evidenoesimilar to that of Munasinghe, and he explained the mud stains on theappellant’s shirt by saying that they struggled together on the ground.The importance of Wimalawathie’s evidence also lies in her statementthat, apart from the appellant voluntarily surrendering to the Police,the appellant complained to her that he had been chased and that hehad snatched the revolver from Kalumahathmaya alias Dias. The
SANSONI, C.J.—The Queen v. Somapala
appellant’s credibility was impeached by the evidence of Munasingheand Wijekoon, but supported by the evidence of Wimalawathie. Hencethe importance of the concession made by Crown Counsel on this point.
Another complaint made against the summing-up was the absence ofany direction to the Jury as to how they were to treat the evidence ofgood character which the appellant gave regarding himself. It has beenheld that the possession, of a good character by an accused is primarilya matter which goes to credibility—see B. v. Beilis'. It is also some-thing which should be taken into account in his favour, on the basis thata person of good character is less likely to commit a crime than a man ofbad character—see (1966) Criminal Law Review, p. 163. There wasno direction to the Jury on this question at all, and there is a passagein the summing-up which Mr. Chitty said was prejudicial to the appellantand could have misled the Jury. The particular passage is :—
“ Gentlemen, in this case it has been stressed before you that thisaccused is a schoolmaster and that he stands to lose more by aconviction than perhaps a person who is not so high in social status.
Well, Gentlemen, if such a person gives evidence, it may be thathe is worried by that fact also, but you Gentlemen of the Jury, whoare impartial judges will not be swayed by a thing like that. You asjudges are not going to be swayed by the fact that he is a schoolmasterand that the other person is a cultivator. You see, Gentlemen, thevery thought that he knows you are all impartial might worry him,it might worry him as to the consequences and how you react to theway he gives evidence. It is because of reasons like this that you areasked to make some allowance for an accused when he gives evidence,only on the question of demeanour, not on anything else. He hasno licence, because he is an accused, to tell lies or anything like that;only on the question of demeanour you make some allowance.”
It is difficult to understand what the learned Commissioner meant toconvey by the words “ the very thought that he knows you are allimpartial might worry him, it might worry him as to the consequencesand how you react to the way he gives evidence, ” and again, " he hasno licence, because he is an accused, to tell lies or anything like that;only on the question of demeanour you make some allowance”. Itmight have been understood by the Jury to mean that the appellantwas a type of person who did not wish to be tried by impartial Judges,and such an opinion of him would certainly not be creditable. Therewas also no need to emphasize the fact that an accused person has nolicence to tell lies. If such an observation was considered proper, itwould have been fairer to add that no witness has any such licence. Thepassage quoted might have left the Jury wondering whether the Judgedid not view the appellant as an unsatisfactory witness and a man whodid not wish to be tried by an impartial tribunal who was also givento telling lies when in the witness box.
i (1966) 1 A. E. R. 552.
TAMBIAH, J.—Somadasa v. Saddhaaena
These observations, coupled with the absence of any referenceto the evidence of good character, which was unchallenged by theprosecution, may well have placed the appellant at a disadvantagewhen the Jury came to consider the weight to be attached to his evidence.We think that these flaws in the summing up affected its fairness to suchan extent as to vitiate it completely.
We quash the conviction. We do not think that this is a case in whichthere should be a retrial.
THE QUEEN v. M. A. SOMAPALA