Wyman v. The Queen
[C'OLfKT OP CliOUXAL A PPlOAL]
1969 Present: H. N. G. Fernando, C.J. (President), Sirimane, J.,
and Weeramantry, J.
VALALLAYTITA K. WYMAN, Appellant, andTHE QUEEN, RespondentC. C. A. Appeal No. 73 op 19GS, vtth Application No. J07S. C. SUjGS—J/. C. jllalugama, 751-1Evidence—Witness—Dcub! as to his competency to understand nature of ceth—Eight of Counsel to question the witness—Unsworn evidence—Requirement ojcorroboration—Burden of proof—Misdirection.
Where there is doubt as to the question whether a witness was, by reason ofhis age or mental immaturity, able to understand the nature of tho oath whichwas-adniinistered to him, Counsel should not be prevented by tho Court fromquestioning the witness so ns to clear the doubt. If the doubt is confirmed, thoJury should bo directed that it is unsafe to act on unsworn evidence unless it issatisfactorily" corroborated.
H. N. G. FERNANDO, C.J.—Wyman v. The Queen
Where the defence calls no evidence and only.suggest3, by cross-examinationof tho prosecution witnesses, that it was not tho accused, but some other personwho committed tho criminal act charged, the burden lies throughout on thoprosecution to establish tho guilt of tho accused. In such a case, it wouldbe a misdirection if the Court suggests to the Jury that some onus lie3 on thodefenco to disprove, by a bolanco of probabilities, facts averred by thoprosecution.
Appeal against a conviction at a trial before the Supreme Court-.
E. R. S. R. Coomarasivamy, with L. Aih'ulathwvdali, C. Chakradaran,
X. T. S. ICularatns, Koscilc. WijaycJiUeke, M. 8. Aziz, S. G. B. Wnbjnm-paya and C. Gane*h (assigned), for tho accused-appellant.
X. Tiltawclla, Crown Counsel, for (he Crown.
Gur. adv. vull.
November 28, 1968. H. N. G. Fernando, C.J.—
The appellant was indicted with the murder of one Gunadasa, and wason that charge convicted of the offence of culpable homicide not amountingto murder.
– The only alleged eye-witness called by the prosecution was oneKarunadasa, who was affirmed at the trial and stated his age to be 15j^ears. The learned Crown Counsel commenced his examination of thiswitness in a manner which quite obviously indicated Counsel’s owndoubts as to the quest ion whether the witness was, by reason of age ormental immaturity, a competent witness.
When this examination had proceeded for a few minutes, Counsel forthe defence submitted to the learned trial Judge that the witness appearedto bo much younger than he claimed to be. This submission was basedon grounds (a) that the witness was “ very small in size ”, and (6) thatthe witness could not repeat some words of the oath administered tohim. In regard to these words, Counsel’s submission was that thewitness did not understand their meaning.
The learned Commissioner then ruled “ I hold that he is competent togive evidence ”. Despite this ruling, Crown Counsel put further questionsdesigned to test tho understanding of the witness, and asked the directquestion "Do you know the difference between truth and falsehood?".There was no answer to this question, and the Commissioner remarked :
" Is all this necessary, I am quite satisfied that the witness is competent
H. N. G. FERNANDO, C.J.— Wyman v. The Queen
to give evidence. ” Crowm Counsel then, with admirable persistence,showed the witness a book and asked the witness, “If I call this anelephant, is it right or wrong? ”, to which the witness replied, “That iscorrect ”, At this point, Counsel appearing for the defence again protestedthat the witness was incompetent, but he was again over-ruled by theCourt. The evidence of the witness was thereafter led, and it is perfectlyclear that the conviction of the appellant depended on that evidence.
We feel bound to say that the learned Commissioner was undulyimpatient in his consideration of this matter, which a sufficientlyexperienced Crown Counsel thought worthy of investigation. If theprosecution itself was doubtful whether the witness understood thenature of the oath which had already been administered, furtherquestioning, if permitted, might have confirmed that doubt. If so,the Jury would have had to be directed that it was unsafe to act onunsworn evidence unless it was satisfactorily corroborated. We arccontent however to let this matter rest there, since the conviction wasvitiated on more certain grounds.
The dcfenco called no evidence, except to prove some minorcontradictions, and made no attempt, in cross-examination of prosecutionwitnesses, to prove tacts which might have established an alibi or foundedan exculpatory or mitigatory plea of self-dofenco, nor did the existenceof any such facts arise upon the prosecution evidence. Thus the defenceonly challenged the prosecution to prove that it was this accused, andno other person, who had stabbed the deceased, and the burden laythroughout on the prosecution to establish the guilt of the accused.
Wo now quote certain passages from the summing-up :
“ The defence takes up the position that the Crown has notsatisfactorily proved that it was this accused who committed thisoffence. The defence lias suggested that it could be anybody else.Now-, where the defence is concerned, you need not be satisfied beyondreasonable doubt. If you are satisfied that the defence position isestablished on a balance of probabilities, as they sa-, then you willaccept the defence position. Unlike the prosecution which lias toprove its caso beyond reasonable doubt, no such high degree of proofis required as far as the defence is concerned. All that the defenceneed show is that their position is more probable. ”
“ In this case the defence has also taken up the position that thisincident did not take place at the spot described by Knrunadasa.They say, for one thing, from where Karunadasa was, that is accordingto them, as he got out of the boutique, he could not have scon anincident where this incident is supposed to have taken place.
H. N. G. FERNANDO, C-J.— ll'j/mon v. The (Juccn
“Whereas the prosecution lias to prove its case, every aspect of itscase, beyond reasonable doubt, the defence has only to show by abalance of probabilities that the position taken up by the accused isprobabh' true. The defence has stated that Baby Nona and herhusband were angry with this accused, and therefore the accusedwas falsely implicated. ”
“ The defence is that this accused lias been falsely implicated inthis case. ”
The passage quoted at (1) above can fairly mean that thcro was anonus on the defence to prove, on tho standard of the balance of probab-ilities, that- someone other than the accused committed the offence ; thesecond passage can mean, in the light of several references to that standard,that the defence position, that the offence may have been committed atsome other place, must bo rejected unless some alternative place of commis-sion is proved by that standard of proof; tho third and fourth passages _can mean that tho jiossibilily of the accused having been falsely implicatedmust be rejected unless proved by tho same standard. Wo. must saywith respect that the same error is disclosed in each of theso passages,namely, the error of suggesting that some onus lay on the defence todisprove facts averred by tho prosecution. It will suffice to note thoprecise consequences of this error in tho case of tho first of the quotedpassages.
In ever}' criminal case, the burden lies throughout on the prosecutionto prove convincingly that tho person charged is the person who actuallycommitted tho criminal act charged. This the prosecution can do, onlyif it succeeds in excluding boj'ond reasonable doubt the possibility thatsomo other person committed that act, and no burden lies on the defenceto establish tho existence of that possibility. But tho diroction nowunder consideration quite clearly informed the Jury that they need notconsider the existence of that possibility, unless the defence proved thatit was probable that “ anybody else ” committed the act of stabbing.These passages thus contained serious mis-directions as to the burden ofX>roof.
We have now to quote another passage in the summing-up, which wascriticised at the appeal :—
“ You will next ask yourselves, is thcro corroboration of thisevidence ? Has tho evidence of Karunadasa and Baby Nona beencorroborated ? They have stated that they followed a trail of bloodand went up to tho body. The sub-Inspoctor of Police has told jtouthat there was a very long trail of blood. I ’will deal with this aspectof the trail of blood a littlo oarlier (sic). For the moment, Karunadasa
Dodanwela v. Bandiya
aud Baby Nona say that a trail of blood led down to tho body of thodoccasod and thoro is evidence that there lias boon a trail of blood upto tho body of tho doceascd. ”
Tho proved existence of a trail of blood did confirm the truth of thetestimony of the two witnesses that they found the body of the deceasedman lying at tho place where the trail ended. But the defence did notdisputo this part of the testimony. What was actively in disputo wastho truth and the accuracy of Karunadasa’s evidence that ho saw theaccused stabbing tho deceased, and tho trail of blood afforded nocorroboration of this evidence. The matter which was hero referredto was not truo corroboration, because it was not- “ ovidonco tondingto show that tho accused committed tho ofFonco charged We holdthat tho learned Commissioner should either have rofrained from referringto the trail of blood as being corroboration, or should olse have directedthe Jury that tho existence of tho trail of blood did not corroborate thevital and disputed part of Karunadasa’s testimony. There was thusmisdirection on a mattor of mixed law and fact.
For tho roasons now stated wo set aside the verdict and sentoncc andorderod a verdict of acquittal to bo ontered. Having regard to the factthat tho prosecution doponded almost entirely on tho ovidonco of a singlewitness, whose understanding was seriously doubted by Crown Counsel,wo did not consider this a fit case for tho exercise of our discretion toorder a fresh trial.
WLALALLAWITA K WYMAN , Appellant, and THE QUEEN, Respondent