The Queen v. Nimalasena de Zoysa
[In the Court or Criminal Appeal]
1958 Present: Basnayake, C.J. (President), Gunasekara, J., andSinnetamby, J.THE QUEEN v. A. NIMALASENA DE ZOYSAAppeal No. 51, with Application No. 68, of 1958S. C. 61—M. G. Balapitiya, 19,561Court of Criminal Appeal—Grounds of appeal—Particulars must be given—Multipli-city of questions put by trial Judge—Is it a ground to quash conviction?—•Kon-direction on facts—Effect thereof—Improper admission of evidence—Effect thereof—Point of time at which Judge should deed with questions as torelevancy of evidence—Evidence Ordinance, ss. 136 (1), 165, 167—CriminalProcedure Code, s. 244 (1) (a)—Court of Criminal Appeal Ordinance, s. 5.
Held, (i) that when an appeal is preferred to the Court of Criminal Appealthe grounds of appeal should not be vague and general but should containsufficient particulars of the matter to which objection is taken. If misdirectionis alleged, the misdirection must be specified, and if a wrong decision of anyquestion of law is alleged the wrong decision should be specifically stated.
that the mere fact that the trial Judge has, by availing himself of thepower vested in him by section 165 of the Evidence Ordinance, put a large 'number of questions to a witness is not a ground for quashing a conviction,even if the number of questions is greater than that put by the prosecution orthe defence. To quash the conviction the Court of Criminal Appeal must besatisfied that the multiplicity of the questions asked by the trial Judge resultedin a miscarriage of justice.
that whore an appellant complains of non-direction on facts, he mustestablish that the omission resulted in a miscarriage of justice.
that although section 136 of the Evidence Ordinance imposes on thetrial Judge the duty of asking the party proposing to give evidence of any factin what manner any particular fact if proved would be relevant or not, the Courtof Criminal Appeal will, when considering a complaint that the appellant hasbeen prejudiced by the admission of irrelevant evidence, take into account thefact that such evidence was not objected to by the appellant at the time atwhich it was given or that it was elicited by the appellant or his Counsel. Whatimportance it would attach to such omissionto object or to the fact that thedefence itself is responsible for eliciting the irrelevant evidence would dependon the circumstances of each case.
that where irrelevant evidence has been admitted, the Court of CriminalAppeal may hold under the provisions of seotion 167 of the Evidence Ordinancethat, easting aside the irrelevant evidence which should not have been admitted,there is sufficient evidence to justify the decision of the jury. Seotion 167of the Evidence Ordinance applies to trials by jury as well as to trials by Judgealone.
(by GunASekaba, J.), that evidence oan be sufficient to justify a decisiononly if it is true and not if it is false, and therefore before the Court can saythat “ there was sufficient evidence to justify the decision ” the credibility ofthat evidence or the fact that its acceptance by the jury was not influenced bythe inadmissible matter must be demonstrable from the record.
a—J. N. B 9149-1,593 (11/58)
BASXAYAKE, C.J.—The Queen v. Nimalasena de Zoyea
that under section 136 (1) of the Evidence Ordinance, read with section244 (1) (a) of the Criminal Procedure Code, questions as to relevancy of evidencemay properly be dealt with only at the point of time at which the evidence istendered. “ Where defending counsel has informed counsel for the prosecutionthat he intends to object to the admissibility of certain evidence, it is, as ageneral rule, undesirable that the argument on admissibility should be hoardand the issue decided before the case is opened. The proper course is for counselfor the prosecution to refrain from referring to the evidence in his opening, andthat the issue should be decided at the appropriate moment in the case whenthe evidence is tendered.”
J^LpPEAL, with application for leave to appeal, against a convict ionin a trial before the Supreme Court.
Colvin B. de Silva, with W. E. M. AbeyseJcera and V. G. B. Perna(assigned) for Accused-Appellant.
B. de Fonseka, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 25, 1958. Basnayake, C.J.—
The appellant Nimalasena de Zoysa, a lad of 16 years and 3 months,attending Revata Vidyalaya in Balapitiya, was convicted of the offenceof murder of D. Dayananda alias Linter de Zoysa another lad of 19 yearsattending the same school. This appeal is from that conviction.
Shortly the relevant facts are as follows: The deceased was a son ofSimeon Zoysa, a carpenter, who at the relevant time lived in the villageof Galwehera. The appellant is a son of Aladin Zoysa of the same village,who at the material time lived about quarter of a mile away from SimeonZoysa’s house. The appellant and the deceased lived with their res-pective parents. The other neighbours who were witnesses at the trialare Mendis Senanayake the headman of Galwehera and Pitahandi RucialNona. The evidence discloses that on 9th May 1957, the date of thisoffence, about 3.15 p.m. the appellant came to the garden adjoining thedeceased’s and called him by name. The deceased answered the appel-lant’s call and left with him informing Giekson Mendis, a relation (hewas married to the deceased’s father’s cousin) and a carpenter by occupa-tion, who happened to be working in his house at the time, that he wasgoing to cut reeds. Round about 3.30 p.m. the two lads were seen byRucial Nona going in the direction of a village called Vilegoda, theappellant carrying a katty like Pi. As the deceased' had not returnedby 6 p.m. his father Simeon Zoysa inquired from Rucial Nona, his nearestneighbour, whether she had seen the deceased that afternoon. Helearnt from her that she had seen the two lads going together in thedirection of Vilegoda, the appellant carrying a katty like PI. Searchparties went in different directions to look for the missing lads. Thesearch went on till about 9.30 p.m. but it proved fruitless. Then two
BASNAYAKE, C. J.—The Queen v. Nimalasena de Zoysa
members of one of the search parties Wilman Zoysa and Gickson Mendisdecided to inform the Police about the disappearance of the two lads.They went to the K osgoda Police Station and Wilman Zoysa made astatement regarding the missing lads. At about 10.30 p.i®, before hisstatement was concluded the appellant was brought to the Police Stationby the headmen of Galwehera and Hegalla. His father accompanied them.
It would appear that in consequence of certain information receivedby the headman of Galwehera from the appellant’s father that night hedecided to go to the house of Rosalin Zoysa to search for the appellant.But he first went to the headman of Hegalla as Rosalin Zoysa lived inhis division, and with him proceeded to her house at about 10.30 p.xn.There they found the appellant. He was dressed in a white sarong andwhite shirt. Both shirt and sarong were stained with human blood.The headman of Hegalla arrested the appellant and took him to theKosgoda Police Station where he was detained. In consequence ofcertain information disclosed by the appellant in his statement to thePolice, the headman of Hegalla, Sergeant Silva, and Police ConstableDharm&ratne left for a place called Miniranwalawatta in a jeep takingwith them the appellant who had offered to point out the place to whichhe threw' the katty PI. The place was not accessible by road and theparty had to halt the jeep some distance away and walk through acinnamon plantation to get there. There the appellant pointed out theplace to which he had thrown the katty, which was recovered. It wasamong a mass of “ pamba ” creepers. He also pointed out the place wherethe body of the deceased was. It was in a Crown land adjoining Miniran-walaw atta and six feet from the place from which the katty was recovered.
In his petition of appeal the appellant has set forth three grounds ofappeal and submitted 33 further grounds subsequently but within theprescribed time. Learned counsel for the appellant at the outset inti-mated to ,us that he would confine his argument to grounds 7, 8, 9, 13,14, 17 and 32 of the further grounds of appeal. Those grounds are asfollow's
“ 7. The learned trial Judge has permitted much indirect anddirect evidence of an inadmissible character relating to a confessionalleged to have been made by me to the Police and this prejudicedmy defence.
“ 8. It is respectfully submitted that the general conduct of thecase by the trial Judge in the course of the examination of witnessesprejudiced my defence. In this connection it is respectfully submittedthat several leading questions at material points in the case were putby the learned trial Judge which prejudiced my defence.
“ 9. The learned trial Judge has erred it is respectfully submittedin his directions on the law of circumstantial evidence.
“ 13. It is respectfully urged that the learned trial Judge’s re-manding my father to Fiscal’s custody in the presence of the Juryand in its hearing prejudiced my defence and caused a miscarriage ofjustice.
lidBASXA TAKE, C.J.—The Queen v. Nimalaaena de Zoysa
' 1 t. It is respectfully urged that the learned Judge permitted< – hU-life to he led that I pointed out the place where the katty was.The learned Judge has failed to direct the Jury carefully in regard tothe evidence of the Police Officer on this point and has permittedlmicli inadmissible evidence to be led on this point.
17. It is also submitted respectfully that the conduct of thecase by ilie trial Judge prevented me from placing my defenceproperly before the Jury.
“ 32. The learned trial Judge permitted much inadmissible evidenceto be led in the case and directed the Jury on the subject matter ofadmissible evidence. It is respectfully mentioned that the admissionof evidence regarding a mango tree and the creepers thereon was acircumstance regarding which the Jury should at least have beencorrectly directed.”
The grounds which relate to the admission of irrelevant- evidenceand misdirection do not set out the items of irrelevant evidence or thespecific misdirections. We have repeatedly stated from this Bench thatgrounds of appeal should contain sufficient particulars of the matter towhich objection is taken, otherwise there would be cast upon this Courtthe burden of scanning the evidence and the summing-up in order toascertain what are the matters to which objection is taken. The petitionof appeal in the instant case is a good example of how grounds of appealshould not be stated. Below are some of the obvious examples ofimproperly set out grounds:—
“ 7. The learned trial Judge has permitted much indirect and directevidence of an inadmissible character relating to a confession allegedto have been made by me to the Police and this prejudiced my defence.
“ 9. The learned trial Judge has erred it is respectfully submittedin his directions on the law of circumstantial evidence.
“ 10. The learned trial Judge has, it is respectfully submitted,erred in his directions on the burden of proof.
“11. It is respectfully urged that the summing-up of the learnedJudge was lopsided and failed to bring out the features of my casefavourable to my defence.
“ 32. The learned trial Judge permitted much inadmissible evidenceto be led in the case, and directed the Jury on the subject matter ofadmissible evidence.”
It does not seem to be sufficiently realised that the appellate powersof this Court, are circumscribed by the statute constituting it and thatthe right of appeal granted by the Court of Criminal Appeal Ordinanceis a limited right, and is not so wide as that conferred by the CriminalProcedure Code on those convicted in Magistrates’ Courts and DistrictCourts. The scheme of our Court of Criminal Appeal Ordinance is in themain the same as that of the corresponding English Act and section 5of our Ordinance which prescribes the powers of this Court is, exceptfor the power to order a retrial, substantially the same as the corresponding
BASNAYAKE, C.J.—The Queen v. Nimalasena de Zoysa
provision of the English Act. It has been said time and again bothhere and by the Courts of Criminal Appeal in England and elsewherethat the grounds of appeal should not be vague and general but specific,that if misdirection is alleged the misdirection must be specified, andthat if a wrong decision of any question of law is alleged the wrong deci-sion should be specifically stated. It would he sufficient to Tefer to twoof the better known expressions of opinion on this point by the EnglishCourt. They are the observations of Darling J. and Du Parcq J. whichhave been cited with approval in subsequent cases.
“ The Court wishes it to be understood that in future substantialparticulars of misdirection or of other objections to the summing-upmust always be set out in the notice of appeal or sent to the Registrar ofthe Court of Criminal Appeal with the notice of appeal, even if thetranscript of the shorthand note of the trial has not then been obtained.Such particulars must not be kept back until within a few days of thehearing of the appeal. If counsel has a genuine grievance regardinga summing-up he knows substantially what it is as soon as the summing-up is finished, and can certainly specify his general objection when hesettles the notice of appeal.” (Darling J. in Wyman1)
It has been said many times in this Court that particulars must begiven in the grounds of appeal. If misdirection is complained of, itmust be stated whether the alleged misdirection is one of law' or fact,and its nature must also be stated. If omission is complained of,it must be stated what is alleged to have been omitted. It is notonly placing an unnecessary burden on the Court to ask it to searchthrough the summing-up and the transcript of the evidence to findout what there may be to be complained of, but it is also unfair to theprosecution, who are entitled to know what case they have to meet. ”(Du Parcq J. in Jack Fielding2)
The grounds argued by learned counsel may be classified under thefollowing heads :—
admission of inadmissible evidence (7, 13, 32),
conduct of the case by the trial Judge to the prejudice of theappellant (8, 17),
misdirection (9, 32), and
It would be convenient to dispose of heads (b), (c) and (d) before dealingwith head (a). In the grounds which fall under head (6) it is urgedthat the learned trial Judge put questions to the witnesses which preju-diced the defence. Section 165 of the Evidence Ordinance empowersa Judge to ask any question he pleases. The material portion reads—
“ The Judge may, in order to discover or to obtain proper proof ofrelevant facts, ask any question he pleases, in any form, at any
113 Or. App. 21. 163 at 165.
2*J. X. B 9140 (11/58)
2 22 Or. App. B. 211.
liASXAYAKK. <’.J.—The Queen v. Nimalasena de Zoyaa
i im<'. oi any witness, or of the parties, about any fact relevant or irre-levant : and may order the production of any document or thing:and neither the parties nor their agents shall be entitled to make anyobjection to any such question or order, nor, without the leave of thecourt, to cross-examine any witness upon any answer given in reply toany such question:
"Provided that the judgment must be based upon facts declaredby this Ordinance to be relevant and duly proved
It would appear from tire transcript of the proceedings that the learnedtrial Judge has asked a very large number of questions. Learned counselfor the appellant stated from the bar that the trial Judge had asked asmany as 282 questions while counsel for the prosecution and the defencehad asked 218 and 286 questions respectively.
The section quoted above gives the Judge a wide power. In order todiscover or to obtain proper proof of relevant facts he may ask anyquestion he pleases in any form, at any time, about any fact whether rele-vant or irrelevant. This power extensive though it be has limits, butthose limits cannot be precisely defined. The trial Judge himself is thebest arbiter of how and when he may exercise it. In its exercise a Judgeshould be careful not to usurp the functions of the prosecution or thedefence. He should also so regulate his interpositions as not to hamperthe conduct of the case by counsel for the prosecution or the defence.The fact that neither the parties nor their agents are entitled to make anyobjection to any question by the Judge or to cross-examine any witnessupon any answer given in reply to his questions is a matter which callsfor caution in the exercise of this power.
In the instant case there is no complaint that the learned Judgeusurped the functions of the prosecution or of the defence or that hisinterpositions hampered the examination and cross-examination ofwitnesses. The mere fact that the trial Judge has put a large number ofquestions to a witness, even if the number is greater than that put by theprosecution or the defence, is not a ground for quashing a conviction.The appellant must satisfy us that the fact that the Judge put so manyquestions resulted in a miscarriage of justice. In the instant case theCourt is not satisfied that the multiplicity of the questions asked by thetrial Judge resulted in a miscarriage of justice.
Learned counsel did not press the ground under head (c). He wasconstrained to admit that the direction on circumstantial evidence wasboth adequate and correct. In regard to head (d) the non-directioncomplained of is not made clear in ground 14.
Where an appellant complains of non-direction on facts he must satisfythe Court that the omission resulted in a miscarriage of justice. In thisconnexion it would not be out of place to refer to the observations ofBrett, Master of the Rolls, in the case of Abrath v. Northern-EasternjRailtmy 1 though those observations were made in a civil case. i
i (1383) 11 Q. B. D. 440 at 453.
BASNAYAKE, C.J.—The Queen v. Nimalasena de Zoysa
“ It is no misdirection not to tell the Jury everything which mighthave been told them : there is no misdirection unless the Judge hastold them something wrong, or unless what he has told them wouldmake wrong that which he has left them to understand. Non-directionmerely is not misdirection, and those who allege misdirection mustshew that something wrong was said or that something was said whichwould make wrong that which was left to be understood.”
The Court is not satisfied that in the instant case there is non-directionamounting to misdirection and that the omissions from the summing-upreferred to by learned counsel in the course of his address have resultedin a miscarriage of justice.
Under head (a) learned counsel invited our attention to those partsof the evidence of Gickson Mendis, Wilman Zoysa, Mendis Senanayakethe headman of Galwehera, and Simeon Zoysa, which he submitted wereirrelevant and prejudicial to the case of the appellant. He also tookobjection to the evidence of Police Sergeant Edwin Silva as to the identityof the katty PI.
To quote all the passages in the evidence to which learned counsel hastaken exception would make this judgment unduly long. Only the moreimportant of them are therefore set out below :—
29k. Q : After you met the village headman at the Police Stationdid you meet Simeon the same night XA : I met Simeon the same night after meeting the headman.
Q : Where ?
A : In his house.
Q : By that time they had come to know that the body had
been found ?
A : I brought him the information which I got from the PoliceStation and conveyed it to the deceased’s father.
Q : Thereafter did you see Simeon leaving the house ?
A : He fainted off on receiving the information.
566. Q: While you were still there the two headmen brought theaccused to the Police Station ?
A : Yes, they came along with the accused’s father.
I<MBASNAYAKE, C.J.—The Queen v. Nimalasena de Zoysa
r,t;T. Q : When did you first learn that the deceased had been killed ?A : At the Police Station.
5<i8. Q: Did you come and give that information to anybody afterthat ?
A : I came home and gave the information.
Q : The deceased’s family ?
Q : You gave the information to Simeon’s wife ?
A : I told not only to Simeon’s wife but to all the others also.
Q : What time did you go to Simeon’s home after you left the
Police Station ?
A : About 10.30 or 11 p.m.
Q : When you went to the house was Simeon there ?
Q : You gave the information to Simeon’s wife .
Q : She started crying and wailing ?
Q : Did you receive information that the deceased had been
killed by somebody when you were there at the KosgodaPolice Station ?
Q : At what time did you get information as to the place of
A : About 10 p.m.
Q : Thereupon did you make any statement to the Police at the
A: I had not concluded my statement to the Police when I gotthe information.
Q : It was when your statement was being recorded that the
other party came to the Police ?
Q : And it transpired that the deceased had been killed ?
BASNAYAKE, C.J.—The Quern v. Nimalasena de Zoysa
Cross-examination contd. :
Q : At the Police Station did you learn where the dead body was ?A: Yes.
Q : Before you left the Police Station you knew the name of the
land on which the deceased’s body was found ?
Q: That night?
Q : What is the name ?
€29. Q : On the 9th of May last year you went with accused’s fatherto the house of the V. H. of Hegalla ?
630. Q : Having taken the V. H. of Hegalla you went to the houseof one Rosalin Zoysa ?
633. Q : At the house of Rosalin Zoysa you found the accused there ?A : Yes.
Q: Can you tell us whether at any time that night Simeon
fainted off in your house ?
Q : That was about what time ?
A: About 10.30 p.m.
Q : That was before you left for the house of the village headman
of Hegalla in search of him ?
A : Yes.
Q: Can you say that at the time Simeon fainted that you and
Simeon were the only people in your house ?
O'liASNAYAivE, O.J.— The Queen o. ,Viiaalasena de Zoysa
i:r,. g : Who were the other people who were in your house at thetime Simeon fainted ?
A: Darlin Vedamahattaya, Aladin Zoysa the father of theaccused, and Charlin Gunaratne the brother of DarlinVedamahattaya.
058. Q : That is all ?
A : Yes. and my children also.
fiob. Q : Did you take any action when Simeon fainted in your house ?
A : As he fell Charlin Gunaratne held him, and I asked Oha. 1 into have Simeon removed immediately.
Sergeant Edwin Silva
Q: On that day did the deceased’s father identify the kaltyA: Yes.
Q : You had to find out from whose house this katty was taken 'A: Yes.
Q: In the course of your investigation, you learnt that this
katty was one belonging to the house of the accused ?
Q : On what date did you come to learn of that ?
A: That same day before the Magistrate came. I recordedthe statement in regard to the identity of the katty fromAladin, father of the accused.
1006. Q : The only step you took in regard to the identity of the kattywas to show it to the father of the accused and to recordhis statement ?
A : And the accused.”
In the opinion of the Court the evidence of Gickson Mendis and WilmanZoysa that they learnt at the Police Station that the deceased had beenkilled and that Simeon fainted on being given the news is irrelevant. Theevidence of the headman of Galwehera that the father of the deceasedfainted in his house is also irrelevant. The Court is also of opinionthat Edwin Silva’s answer to questions 1004 and 1006 have the effect ofintroducing hearsay as the appellant’s father was not called to giveevidence at the trial. At the same time it must be pointed out that theevidence to which learned counsel took exception in this Court was eitherelicited by defending counsel in cross-examination or, when not elicitedby the defence, allowed to pass without objection. Although section.
BASNAYAKE, C.J.—The Queen v. Nimalasena de Zoysa
136 of the Evidence Ordinance imposes on the Judge the duty of askingthe party proposing to give evidence of any fact in what manner anyparticular fact if proved would be relevant or not, this Court will whenconsidering a complaint that the appellant has been prejudiced by theadmission of irrelevant evidence take into account the fact that such,evidence has not been objected to by the appellant at the time at whichit was given or has been elicited by the appellant or his counsel. Whatimportance it would attach to such omission to object or the fact that thedefence itself is responsible for eliciting the irrelevant evidence woulddepend on the circumstances of each case. The progress of a trial wouldbe considerably hindered if the Judge had to inquire from counsel whenevera question is asked how the fact that is sought to be elicited is relevant.It is therefore necessary that counsel on either side should make everyeffort to keep their examination and cross-examination strictly withinthe limits prescribed by the Evidence Ordinance and ask no questionsthat will bring out irrelevant facts. At the same time they should bevigilant and actively assist the Judge in the task of keeping evidencewithin the limits of relevancy as laid down in the Evidence Ordinance bybringing to his notice any question of his opponent that is likely tointroduce irrelevant facts. The Legislature recognising the difficultyof altogether excluding the introduction of irrelevant evidence in thecourse of a trial has enacted a useful provision in section 167 of theEvidence Ordinance. It reads—
‘ The improper admission or rejection of evidence shall not be groundof itself for a new trial or reversal of any decisions in any case, if it-shall appear to the court before which such objection is raised that,,independently of the evidence objected to and admitted, there wassufficient evidence to justify the decision, or that, if the rejected evi-dence had been received, it ought not to have varied the decision.”
This section applies equally to civil as well as criminal trials. It hasnever been doubted in this country that in the case of criminal trials itapplies to trials by jury as well as to trials by Judge alone (Rex v. Thegis1;The King v. Pila2; The King v. Appu Sinno 3). In the case of The King v.Pila (supra) Lascelles C.J. observed at p. 458—
“ There can be no question but that this Court, under section 167 ofthe Evidence Ordinance, has power to uphold the conviction, if weare of opinion that the evidence improperly admitted did not affectthe result of the trial.”
In the case of Rex v. Thegis (supra) Shaw J. said—
“ In my opinion, therefore, section 167 of the Evidence Ordinanceapplies to the present case, and we have the power to uphold the verdicton the admissible evidence should we think the circumstances warrantit.”
1 (1901) 2 N. L. B. 10.2 (1912) 15 N. L. B. 45 J.
3 (1920) 22 N. L. B. 353,
InsliASNAYAKK. C.J.—The Queen v. XimaJasena de Zoysa
Tin* doubt which at one time existed in India whether the correspondingprovision of the Indian Evidence Act which is word for word the same asour section applies to trials by jury has been set at rest by the Privy(!ouncil. It is sufficient for the purpose of this appeal to refer to the caseof Abdul Rahim v. Emperor1 and Koitaya v. Emperor 2. In the former caseLord Macmillan who delivered the opinion of the Board stated at p. So—
“ The first question submitted relates to the effect of the misreoop-tion of evidence. It has been found by the High Court that in thepresent case material evidence was improperly admitted. Whatare the powers and what is the duty of the High Court in such circum-stances ? It was contended for the appellant that the evidenceimproperly admitted might have so seriously prejudiced the minds ofthe jury as to have brought about a failure of justice and that h«>was entitled on a new trial to have the verdict of a jury on properevidence. To this submission S. 167, Evidence Act, in their Lord-ships’ opinion affords a complete and conclusive answer. Tic-improper admission of evidence is thereby expressly declared not to 1»-a ground of itself for a new trial. The appellate Court must apply itsown mind to the evidence and after discarding what has been impro-perly admitted decide whether what is left is sufficient to justify theverdict. If the appellate Court does not think that the admissibleevidence in the case is sufficient to justify the verdict then it will notaffirm the verdict and may adopt the course of ordering a new trialor take whatever other course is open to it. But the appellate Courtif satisfied that there is sufficient admissible evidence to justify theverdict is plainly entitled to uphold it.”
In the latter case at which the former decision does not appear to havebeen cited Sir John Beaumont who delivered the opinion of. the Boardt(p. 71) observed—
“ The position therefore is that in this case evidence has beenadmitted which ought not to have been admitted, and the duty of theCourt in Such circumstances is stated inS. 167, Evidence Act, whichprovides :
The improper admission or rejection of evidence shall not beground of itself for a new trial or reversal of any decision in anycase, if it shall appear to the Court before which such objection israised that, independently of the evidence objected to and admitted,there was sufficient evidence to justify the decision, or that, if therejected evidence had been received, it ought not to have variedthe decision.’
“ It was therefore the duty of the High Court in appeal to applvits mind to the question whether, after discarding the evidenceimproperly admitted, there was left sufficient to justify the convictions.The Judges of the High Court did not apply their minds to this questionbecause they considered that the evidence was properly admitted, and•their Lordships propose therefore to remit the case to the High Court
* (1946) A. I. R. (P. G.) &2.
1 [1947) A. I. B. (P. C.) 67.
BASNAYAKE, C.J.—The Queen v, Nimalasena de Zoysa
of Madras, with directions to consider this question. If the Court issatisfied that there is sufficient admissible evidence to justify theconvictions they will uphold them. If, on the other hand, theyconsider that the admissible evidence is not sufficient to justify theconvictions, they will take such course, whether by discharging theaccused or by ordering a new trial, as may be open to them.”
J t would appear from the cases cited above that the duty of the Courtis to cast aside the evidence which ought not to have been admitted andthen consider whether there still remains sufficient evidence to supportthe conviction. Applying this rule to the facts of the instant case, andcasting aside the irrelevant evidence which should not have beenadmitted, there is sufficient evidence to justify the decision of the jury.Learned counsel for the appellant to whom we afforded the opportunity■of addressing us on the question whether this Court was empowered toact under section 167 did not argue that it had no power to do so ; but hecontended that this Court should in a case where evidence had beenimproperly admitted act in the same way as the Court of Criminal Appealin England. To accede to that contention would amount to ignoringsection 167. It would be wrong to do so. The Court of Criminal Appealin England has not the power which this Court has of -ordering a newt rial; but it would appear from the following observation of ViscountSimon in the case of Stirland1 that even in England the Court does notquash a conviction merely on the ground of misreception of evidence.
" It lias been said more than once that a Judge when trying a caseshould not wait for objection to be taken to the admissibility of theevidence, hut should stop such questions himself (see Ellis 5 Cr. App.R. 41 at p. 62 : (1910) 2 K. B. 746 at 764). If that be the Judge’sduty, it can hardly be fatal to an appeal founded on admission of animproper question that counsel failed at the time to raise the matter.No doubt, as Bray, J., said at pp. 61 and 763 of the respective reports inthe same case, the Court must be careful in allowing an appeal on theground of reception of inadmissible evidence when no objection hasbeen made at the trial by the prisoner’s counsel. The failure of counselto object may have a bearing on the question whether the accused wasreally prejudiced. It is not a proper use of counsel’s discretion to raiseno objection at the time in order to preserve a ground of objection for apossible appeal. But where, as here, the reception or rejection of aquestion involves a principle of exceptional public importance, it wouldbe unfortunate if the failure of counsel to object at the trial shouldlead to a possible miscarriage of justice.’"
There is one other matter that should be adverted to. After the juryhad been empanelled but before the opening address for the prosecution,counsel for the defence indicated to the learned trial Judge that he wishedto take certain objections to the indictment in the absence of the jury.In the course of his submissions he stated that he would object to CrownCounsel referring in his opening address to the jury to a confession made
130 Or. App. B. 40 at 55.
I 1 uHAnX aYAKE. C..I.—The Queen v. Nimalasena de Zoysa
b v t he appellant to his father Aladin Zoysa. After hearing the submissions-of counsel for the defence and the prosecution the learned trial Judgeinformed counsel of the course he proposed to take. He said-—
What I propose to do is this, to call the father into the witnessbox now and give my ruling on the admissibility of that evidence.If I rule that his evidence is admissible, I propose to allow CrownCounsel to open on that part of the case to the jury. If I holdagainst the Crown on the point, I will direct Crown Counsel not toopen on that matter.”
The appellant’s father and the headman of Galwehera were then .titirmedand examined-in-chief, cross-examined, and re-examined, and alsoquestioned by the learned trial Judge. At the end of their examinationthe learned Judge ruled that the counsel for the Crown should not in hisopening address refer to the appellant’s confession to his father. Theappellant’s father was not eventually called as a witness by either theprosecution or the defence.
The course adopted in the instant case is unusual. When the defenceproposes to object to evidence of any fact appearing in the "depositionsbeing tendered at the trial it has been the practice for quite a long timefor defence counsel to indicate it to counsel for the Crown so that lie mayexercise his discretion as to whether he should omit any reference in hisopening address to the item of evidence to which the defence proposes toobject. It has been a good working rule and it is not clear why the usualcourse was not adopted in this instance. The proper time for the Judgeto rule on the admissibility of evidence is when a party proposes to giveevidence of any fact and not before. Section 136 (1) of the EvidenceOrdinance reads—
“ When either party proposes to give evidence of any fact, the Judgemay ask the party proposing to give the evidence in what manner thealleged fact, if proved, would be relevant, and the Judge shall admitthe evidence if he thinks that the fact, if proved, would be relevant,and not otherwise.”
Section 244 (1) (a) of the Criminal Procedure Code, which prescribesthe duty of the Judge in a trial by Jury, lays it down that it is the dutyof the Judge to decide all questions of law arising in the course of a trialand especially all questions as to the relevancy of the facts which it isproposed to prove and the admissibility of evidence. This provisionlends support to section 136 (1) of the Evidence Ordinance and emphasisesthe rule that questions as to relevancy of evidence may properly be dealtwith only at the point of time at which a party proposes to elicit the oralevidence or tender any documentary evidence.
The instant case illustrates the danger of ruling on the admissibilityof evidence before the appropriate stage is reached. It resulted in theadmission of hearsay evidence and the father of the appellant not beingcalled as a witness though he had material evidence to give. The rele-vancy of a fact has to be determined against the background of other
GUNASEKARA, J.—The Queen v. Niwakiaeiia de Znysa
relevant facts which the prosecution has led in evidence. It is bothdifficult and unsafe to rule on the relevancy of evidence in vaauo as itwere.
The procedure that has been followed all this time has not only long-standing practice to commend it but is also what our law enjoins.Although in England Criminal Procedure is not governed entirely bystatute as in our country, the procedure adopted is the same. Compara-tively recent attempts in that country to depart from the establishedprocedure have been disapproved by the Court of Criminal Appealas in the case of Framroze Patel1, where Byrne J. adopting with approvalthe headnote to Zielinski2 said—
•' Where defending counsel has informed counsel for the prosecutionthat he intends to object to the admissibility of certain evidence, it is,as a general rule, undesirable that the argument on admissibilityshould be heard and the issue decided before the case is opened. Theproper course is for counsel for the prosecution to refrain from referringto the evidence in his opening, and that the issue should be decidedat the appropriate moment in the case when the evidence is tendered.”
The appeal is accordingly dismissed and the application refused.
I find myself unable to agree with the majority of the court on theprincipal questions of law that are discussed in the judgment that hasbeen prepared by my lord the Chief Justice.
It is the unanimous view of the court that on several points inadmissibleevidence has been admitted. The admission of every such item ofevidence necessarily involved a wrong decision of a question of law and.therefore, in terms of section 5 of the Court of Criminal AppealOrdinance, the court must decide whether it considers “ that no mis-carriage of justice has actually occurred”. The case for the prosecutionrested mainly on the evidence given by Gickson Mendis, Rucial Nona andPolice Constable Dharmaratne and the evidence of the presence of “ a fewsmall stains ” of human blood on the shirt and sarong that the appellantwas wearing at the time of his arrest. The credibility of each of thesethree witnesses was challenged by the defence and it cannot be demon-strated that the jury would have accepted their testimony even if theinadmissible evidence had not been placed before it. Although according,to the case for the prosecution the appellant was arrested within a fewhours after the commission of the alleged murder there is no evidencethat the blood-stains were too fresh to have been caused long before thedeceased’s death. Nor does it appear that they were too large or toomany to he such blood-stains as might be found on the clothing of anyvillager without his being able to explain them, by recalling for instancea particular occasion on which he was stung by a mosquito or was prickedby a thorn or bitten by a leech.
135 Or. App. B. 62 at 65.
4 34 Or. App. li. 193.
! 1-GLNASKKARA, J.—The Queen v. Ximalasena de Zoysa
Before the court can say that no substantial miscarriage of justice hasactually occurred it must consider the possible effect on the minds ofthe juiy both of the inadmissible evidence and of the order, of which theappellant complains, committing his father Aladin Zoysa to the custodyof the fiscal.
After the jury had been empanelled and before the case for theprosecution was opened the counsel for the defence requested that thejury should be asked to retire as he proposed “ to take certain objectionsto the indictment”. In reply to a question from the presiding judgeas to how the jurors would be affected by legal submissions he said thathis legal submissions “ would be covering certain factual matters ”.The jury were then asked to retire. They did so at 11.45 a.m. andreturned shortly after 12.50 p.m. It appears that the learned judge thensaid in their hearing “ Let the accused’s father be kept in fiscal’s custodyuntil this case is over.”
It is not unlikely that the jury would have inferred that what led tothis order were “ factual matters ” discussed in their absence. Norcould they have failed to notice that the man who was to be kept incustody was described not by name but by reference to his relationshipto the appellant. Subsequently, although Aladin Zoysa was not examinedas a witness, the prosecution adduced evidence indicating that, at a timewhen no prosecution witness had any information as to whot hadhappened to the deceased, Aladin Zoysa gave the village headman ofGalwehera information that led him to cause the village headman ofHegalla to arrest the appellant. No doubt the object of thisevidence was merely to introduce and explain the relevant fact of thearrest; but it was not necessary for that purpose and was therefore notadmissible under section 9 of the Evidence Ordinance on that ground.On the other hand it could have had, and most probably did have, theunintended effect of suggesting to the jury that Aladin Zoysa, who wasnot being called as a witness and who had been committed to the custodyof the fiscal after some proceedings held in their absence, w'as in a positionto give incriminating evidence against his son if only he could be persuadedto place public duty before private interest and disclose what he knew.
In addition to this inadmissible evidence as to the part played byAladin Zoysa in the events that led to the prisoner’s arrest the jury hadbefore them inadmissible hearsay to the effect that Aladin stated toPolice Sergeant Edwin Silva that the katty PI “ was one belonging to thehouse of the accused ”. It may well be that this inadmissible evidenceinduced the jury to accept Rucial Nona’s evidence that she had seen asimilar katty in the appellant’s hands at about 3.30 p.m. and evidence ofPolice Constable Dharmaratno that he found the katty PI at a placepointed out by the appellant as a place to which the appellant hadthrown it.
Prejudice could also have been caused by the evidence elicited fromWilman Zoysa in his examination-in-chief as to the information thathe claimed to have obtained at the police station. The passages fromthat evidence that are quoted in the judgment of my lord the Chief Justice
Nagaratnam v. John
could not fail to suggest to the jury that the appellant or his father orboth had stated at the police station that the deceased had been killedby the appellant.
For these reasons it is not possible, in my opinion, for the court to hold“ that no miscarriage of justice has actually occurred ”, and the appealmust therefore be allowed.
Application of the provisions of section 167 of the Evidence Ordinancecan lead to no different result.
I do not think that “sufficient evidence” means “evidence whichif believed would be sufficient ”. It seems axiomatic that evidence canbe sufficient to justify a decision only if it is true and not if it is false.Therefore, before the court can say that “ there was sufficient evidenceto justify the decision ” the credibility of that evidence or the fact thatits acceptance by the jury was not influenced by the inadmissible mattermust be demonstrable from the record.
In a case in which inadmissible evidence induces a jury to acceptevidence that has been properly admitted the sufficiency of the latter tojustify the decision is dependent on the former. Therefore, in such acase as the present one, where the inadmissible evidence could haveinduced the acceptance of the admissible evidence, the court is not in aposition to say that independently of the inadmissible evidence therewas “ sufficient evidence to justify the decision ” of the jury. Whatthis expression contemplates is not evidence which may or maynot be true but evidence that is demonstrably true or evidence that can bedemonstrated to have been accepted by the court of trial without beinginfluenced by inadmissible evidence to arrive at that finding. I thereforesee no inconsistency in the views expressed by the learned judges whodecided the three Ceylon cases cited by my lord the Chief Justice and noconflict between those views and the two Privy Council decisions.
In my opinion the conviction of the appellant and the sentence passedon him must be set aside and the court must order a new trial.
THE QUEEN v. NIMALASENA DE ZOYSA