NAGALINGAM A.C.J.—Jayasena v. The Queen
[Court of Criminal Appeal]
1953 Present : Nagalingam A.C.J., Gratiaen J. and K. D. de Silva J.
W. JAYASENA et al., Appellants, and THE QUEEN,Respondent
Appeals 35—39, with Applications 52—56/S. C. 25—M. C. Chilaw, 52,857
Trial before Supreme Court—Failure of accused to give evidence—Adverse commentsby Court—Scope of inference against accused—Misdirection.'
In a trial before the Supreme Court, the case for the prosecution restedprincipally upon the evidence of one witness, K. B. In the course of the Judge’ssumming-up the Jury were told that they could legitimately draw the inferencethat K. B.’s evidence, which, taken by itself, might not be regarded as trust-worthy, could, in view of the failure of the accused persons to give evidenceon their own behalf and contradict that evidence, be deemed to be true.
■Held, that the Judge’s comment on the failure of the accused to give evidence
was in the circumstances a misdirection.
PPEALS, with applications for leave to appeal, * against certainconvictions in a trial before the Supreme Court.
M. M. Kumarakulasingham, with S. Saravanamuttu and S.Lekamge, for the accused appellants.
Ananda Pereira, Crown Counsel, for -the Attorney-General.
Cur. adv. melt.
October 19, 1953. Nagalingam A.C.J.—
The prisoners in this case were convicted of offences of being members-of an unlawful assembly, rioting and attempt to commit murder, andwere sentenced to three years’ rigorous imprisonment each. The natureof the evidence against the prisoners was summarised by the learnedtrial Judge as follows :—
“ Of course, in a case which rests on the testimony principally ofone witness, as in this case, you would have to be very circumspectbefore you decide to act on that evidence, and you would have to bespecially so, having regard to the previous record of the witness KiriBandiya,”
and the learned trial Judge proceeded to assess the value to be placed^on the evidence of this witness :
“ Although there is no evidence to hold that he is an interestedwitness, still if you come to the conclusion that he had spoken a false-hood on a material point, then there is sufficient ground for you to-hold that he is an interested witness, and takmg into considerationbis previous record I think it is unsafe to act on his evidence.”
1STAGAXUSTGAM A.C.J,—Jayasena v. The Queen515
Thereafter the learned Judge, after directing the Jury quite properlythat it was for the prosecution to establish its case beyond reasonabledoubt, commented on the absence of the accused from the witness-boxas follows :—
“ The other matter relied upon by the prosecution is that no evidencehas Ijeen adduced to show where the accused were. The accusedare not obliged to lead that evidence, but they are in a 'position to adduceevidence to show that they were not at the scene of this incident, and thereby, contradict the evidence of Kiri Bandiya. As I said, the accused arenotiobliged to lead evidence or call witnesses. None of the accusedneeds get into the witness-box to give evidence.. One witness hastieen called by the defence to show that Somida and Kiri Bandiyadid not go to Tileke’s house that night. When you are consideringthe evidence such as this, what are the reasonable inferences to bedrawn on matters again within your province as judges of fact ?But in drawing these inferences you must bear in mind that the accused-are at liberty to adduce evidence to disprove that they have been absconding.When it is open for them to give evidence, although they cannot be com-pelled to give evidence^ and if they refrain from giving evidence, thenthey m-hst s&ffer the consequences. On a careful consideration of thematter, on the question that they were absconding, if you hold that fromthe failure of the accused to give evidence that what Kiri Bandiya saysis the truth, then you can act on his evidence, of course, bearing inmind what I already told you that the accused cannot be compelledto give evidence. However, you must not regard these matters asreasons which may enable you to overlook the deficiencies in theprosecution case.”
This passage? taken as a whole cannot be said to be above the reasonablycriticism made by counsel for the appellants that the effect of it wasthat the Jury were told that they could legitimately draw the inferencethat Kiri Bandiya’s evidence, which taken by itself may not be regardedas trustworthy could, in view of the failure of the prisoners to giveevidence on their own behalf and contradict that evidence, be deemedto be true..
This direction, there can be little doubt, proceeds on a wrong basis.The weakness in the prosecution case is never made good by a deficiencyin the defence set up by the accused. It is axiomatic to say that theabsence of the accused from the witness-box does not make a case moreonerous against him, or that a prosecution case otherwise not establishedis proved thereby. Lord Oaksey in delivering the judgment of theJudicial Board of the Privy Council in the case of Cyril Waugh v. TheKing 1 said :•.
“ It is true that it is a matter for the judge’s discretion whether beshall comment on the fact that a prisoner has not given evidence ; butthe very fact that the prosecution are not permitted to comment onthat fact shows how careful a judge should be in making such comment
** (J950) L. R. A. O. 203 at 211.
N’AGrAX.XNGrAM A.C.J.—Jayasena v. The Queen
Here the appellant had told the same story almost immediately afterthe shooting, and his statements to the prosecution -witnesses and hisstatement to the police' made the same day were put in evidence by theprosecution. Moreover, his story was corroborated by the findingof the bag of coconuts and the iron tool and by the independent evidenceas to the place where the shooting took place. In such a state of theevidence the judge’s repealed comments on the appellant’s failure to giveevidence may well have led the Jury to think that no innocent man couldhave taken such a course.”
And the conviction for murder-in that case was for that reason quashed.In this case, however, the charge to the Jury went further than naerecomment on the prisoner’s failure to give evidence, as in the ease cited.Here, to put it at the lowest, the suggestion is made to the Jury that“ from the failure of the accused to give evidence ” they may hold that“ what- KiriBandiyasays is the truth ” for “ they must suffer the con-sequences ” “ if they refrain from giving evidence ”.
In Doraisamy’s case 1, in regard to a statement in the charge :
“ So, where there is evidence adduced by the Crown which implicatesthe prisoner, and the prisoner does not give evidence, you are entitled• to draw an inference against him from that fact ”,
Hearne J., who delivered the judgment of the Court, remarked :
‘“ The standard of proof required in criminal cases remains constant
irrespective of the fact that the accused has not given evidence.”
In the case of Chelliah 2, I had occasion to observe:—
“ If an inference that the accused person is guilty be permitted tobe drawn from the fact that he has not chosen to get into the witness-box and deny the case set up against him by the prosecution, whateverthe infirmities of that case may be, it would be easy 'to see that farfrom the burden of proof remaining from start to finish on the prose-cution it gets shifted to the accused on the close of the case for theprosecution, whatever the case established against the accused may be,a proposition which under our law at any rate carries with it its owncondemnation. ’ ’
And ttn'q observation is of equal applicability to the circumstances of thepresent case.
Having regard to these considerations, we allowed the appeal andacquitted the accused.
1 [1942) 43 N. L. R. 241.
Appeal allowed.2 [1S52) 54 N. L. R. 465.
W. JAYASENA et al., Appellant, and THE QUEEN, Respondent