019-NLR-NLR-V-70-THE-QUEEN-v.-R.-R.-ABILINDU-FERNANDO.pdf
The Queen v. Abilinu Fernando
73
[Court of Criminal Appeal]
1967 Present :H. N. G. Fernando, C.J. (President), Manicavasagar, J.and Siva Supramaniam, J.THE QUEEN v. R. R. ABILINU FERNANDOC. C. A. Appeal No. 17 of 19.67, with Application No. 19S. C. 271—M. C. AvissaweUa, 76439Evidence—Witness for the prosecution—Adverse witness—Proof of former statementsmade by him incriminatory of the accused—Admissibility—Evidence Ordinance,s. 154—Court of Criminal Appeal Ordinance, s. 5 (I).
The accused-appellant was charged with the murder of his brother’s wife. Atthe trial the father of the appellant was called as a witness for the prosecution.In the examination-in-chief he was questioned only in order to elicit from himthe fact that he had identified the deceased woman at the post mortem examina-tion. In cross-examination his evidence was favourable to the accused on threepoints (1), (2) and (3). In view of this evidence Crown Counsel, after obtainingpermission from Court, put questions which might have been put in cross-examination concerning points (1), (2) and (3). Furthermore, he asked thewitness questions relating to two new points (4) and (5), viz., whether he sawthe appellant just after the alleged murder, and whether the appellant had aknife in his hand at that time. In view of the denials made by the witness inrespect of all five points, Crown Counsel confronted him with the statements hehad made in his depositions in the Magistrate’s Court. Those statements werecontradictory of his evidence at the trial not only in respect of points (1), (2)and (3) but also in respect of points (4) and (5).
Held, that the prosocution should not have been permitted to prove thewitness’s former statements incriminatory of the accused in respect of points (4)and (5). “If at a trial a prosecution witness voluntarily or in answerto defence counsel, gives evidence clearly inconsistent with a statementmade by him in his deposition, the discretion of the trial Judge unders. 154 of Evidence Ordinance may well extend to permitting theprosecution to contradict the witness by proof of the former statement.But the case is different where there is no such inconsistent evidence, butmerely some testimony generally unfavourable to the prosecution. In such acase, the prosecutor should not open the door to prove a former statementincriminatory of the accused by the device of first tempting or provoking thewitness to deny the incriminatory matter. While such a course may be ofsome advantage in casting %oubts on the general credibility of the witness, itsmore serious consequence is to cause grave prejudice to the accused.’’
Held further, that, in view of other independent testimony, the conviction ofthe accused should be affirmed in terms of the proviso to section 5(1) of theCourt of Criminal Appeal Ordinance.
LXX—4
1*—H 8847 (11/87)
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H. N. G. FERNANDO, C.J.—The Queen v. AbUinu Fernando
i.PPEAL against a conviction at a trial before the Supreme Court.
M.M. Kumarakulasingham, with Cosme Dalpathado, H. W. A. Andradoand N. Balakrishnan (Assigned), for the Accused-Appellant.
R. de FonseTca, Senior Crown Counsel, for the Attorney-General.
Cur. adv. wit.
April 18, 1967. H. N. G. Fernando, C.J.—
The appellant was convicted by an unanimous verdict of the jury ofthe murder of his brother’s wife. The principal witness for the prosecu-tion, one Premaratne, gave evidence which if believed clearly establishesthat he had seen the appellant stab the deceased woman more than once ;and this together with certain independent evidence as to motivesufficed to establish the guilt of the appellant.
After leading the medical evidence, the prosecution called one SamelFernando, the father of the appellant and the father-in-law of thedeceased woman. This witness was in examination-in-chief questionedonly in order to elicit from him the fact that he had identified thedeceased woman at the post mortem examination.
In cross-examination, Samel Fernando in answer to certain questionsgave evidence—
suggesting the possibility that the previous witness Premaratne
may not have been able to identify the assailant of the deceasedwoman because of trees and hedges which could have impededhis view of the scene ;
indicating that there had been no ill-feeling between the appellant
on the one hand and the deceased woman and her husband (theappellant’s brother) on the other ;
suggesting that there had been police interference with witnesses
prior to their giving evidence in the Magistrate’s Court.
In view of this evidence Crown Counsel moved to put to the witnessquestions which might have been put in cross-examination, and thisapplication was allowed by the learned Commissioner. Thereafter CrownCounsel proceeded to examine the witness fqpther, firstly with the objectof negativing the suggestion that there had been police interference withthe witness himself ; secondly, there was the following examination :—
“ Q. Did your son John complain to you prior to this incident thatthis accused was trying to get on terms of intimacy with hiswife and was harassing them ?
A. No,
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H. N. G. FERNANDO, C.J.—The Queen v. AbUinu Fernando
•
Q. Did you say this in the Magistrate’s court ?
Court : I take it that John will be a witness.
Crown Counsel: Yes, My Lord.
Q. Did you say this in the Magistrate’s Court : "Prior to thisincident I received a complaint from my son John Fernando….(Crown Counsel omits four words) that this accused wasattempting to get on terms of intimacy with the deceased ” ?
A. No.
Q. Did you also say in the Magistrate’s Court :“In consequence
I advised this accused ”?
A. No.
Q. Did you continue and say this : “ For some time prior to thisincident the accused was angry with the deceased as she rejectedhis advances ” ?
A. No.
Q. As a result of this were any complaints made to the Grama Sevakaand the police ?
A. No.
Q. And did you say this continuing your evidence in the Magistrate’sCourt : “ Several complaints had been made to the Grama Sevakaand the Police ” ?
A. No. ”
These statements in the witness’s depositions were subsequently provedat the trial.
It will be seen that the matters which were thus for the subject ofCrown Counsel’s further examination related to that part of his testimonyto which I have referred at (b) above. I can see no objection to theexamination with respect to these matters.
Thereafter Crown Counsel put to the witness the following part of hisdeposition in the Magistrate’s Court :—
“ Today at about 12.30 p.m. I went to the latrine behind this house.At the time the deceased was at home and my son John had gone towork in a gem pit which is about half a mile from here. When I wasin the latrine I heard the deceased crying out “ ep®®® ’’ about fourtimes. I rushed out of the latrine and I saw the deceased fallen on therubber land behind her house”
At this stage, after an intervention by Court, Crown Counsel asked thewitness the following questions :—
“ Q. When you came out and saw your daughter-in-law lying fallendid you see this accused running away ?
A. I did not see.
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H. N. G. FERNANDO, C.J.—The Queen v. Abilinu Fernando
Q. Did you see this accused having a knife or some other pointedobject in his hand ?
A. No. I saw 2 or 3 people running along the road.
Q. Did you say this in the Magistrate’s Court: “ I saw the accusedrunning away ” ?
A. No.
Q. Did you further say : “ he had a knife or some other pointedobject ” ?
A. No. (The whole passage is marked X2).”
It appears from certain remarks made by Crown Counsel during thetrial that he was aware that the witness Samel would not give evidenceon the lines of his deposition in so far as the evidence would implicatehis son the appellant. That presumably was why the examination-in-chiefdid not cover the alleged incident of stabbing. It will be seen, however,that during the examination permitted under Section 154 the prosecutiondid refer to the contents of the deposition to the effect that the witnesshad seen the appellant running away with a knife in his hand from theplace where the deceased woman lay fallen, and that those contents ofthe deposition was ultimately proved in the extract marked “ X 2
Now the witness had not previously given at the trial any testimonyto the effect either that he had not seen the appellant just after theincident, or that the appellant did not have a knife in his hand at thattime. Hence the assertions in “ X 2 ” concerning those matters werenot used to contradict any testimony to the contrary which had beenelicited from him by Counsel for the defence. What actually took placeat the trial was that Crown Counsel, knowing that the witness woulddeny these matters, first elicited such a denial and then proceeded toshow that the witness had made different statements at a different time.
Learned Senior Crown Counsel at the argument of the appeal justifiedthis course on the ground that there had been in the cross-examinationby the defence the following evidence from the witness :—
" Q. Did you hear anybody crying in pain ?
A. Yes. I went out to see.
Q. Did you see anybody ?
A. Yes.
Q. Then what did you do ?
A. My daughter-in-law was lying fallen and I raised her up.”
The argument was that this evidence, because it did not contain anyreference to the appellant having been seen by the witness at the timewhen he saw the deceased woman lying fallen, might lead the jury to
H. X.jGr. FERNANDO, C.J.—The Queen v. Abilinu Fernando77
doubt whether the previous witness Premaratne could himself have seenthe appellant stabbing the deceased. We do not agree with the factualimplication of this argument. So far as the Jury was concerned, therewas no real inconsistency between the evidence of the witnessPremaratne, which related to a stage up to and including the fall of thedeceased woman, and that of Samel, which related to a stage subsequentto a fall of the deceased woman. Had the matter been left as itremained at the end of the cross-examination there was very little ornothing elicited by the defence from the witness Samel as to the presenceor absence of the appellant at the scene.
Moreover, the prosecution case as presented to the Jury was clearlynot intended to include any testimony from Samel implicating theappellant as having been present at the scene with a knife in his hand.If that had been the prosecution’s intention Samel should have beenquestioned with respect to these matters during the examination-in-chief.
In fact what transpired at the trial was that the prosecution eliciteddenials on these matters from the witness with the intention of contra-dicting him by proof of his deposition. As learned Senior Crown Counselhas presented the point, this course was followed only in order to shakethe witness’s credibility by showing that he said one thing in the trialCourt and another to the Magistrate. But it happens that the Jury wasthen informed of evidence given before the Magistrate which wras clearlyprejudicial to the appellant.
In the ordinary case where a prosecution witness turns adverse he doesso during the course of his examination-in-chief. Thus a witnessmay have testified before a Magistrate that he was present at a certainplace, that he saw A and B together, that they had an argument, andthat ultimately A stabbed B. It may happen at the trial that thewitness commenced his evidence by stating that he w as not present at theparticular place and that he did not see A and B together, thus indicatingthat he will not give testimony in accordance with his deposition. Ifsuch a situation occurs, the prosecution should, unless it succeeds intactfully persuading the witness to come out with his former testimony,abandon him for the purpose of the trial. If a witness persists in denyingthat he saw A and B together on the particular occasion, there is no needfor the prosecution to proceed further and obtain a denial from thewitness that he saw A stab B, and thereafter to contradict that denialby proving a deposition that ho did see A stab.
If at a trial a prosecution witness voluntarily or in answer to defencecounsel, gives evidence clearly inconsistent with a statement made byhim in his deposition, the discretion of the trial Judge under s. 154 ofEvidence Ordinance may well extend to permitting the prosecution tocontradict the witness by proof of the former statement. But the caseis different where there is no saich inconsistent evidence, but merely sometestimony generally unfavourable to the prosecution. In such a case, theprosecutor should not open the door to prove a former statement
1**—H *847
78
H. N. G. FERNANDO, C.J.—Kangasabai v. Conrad Pet&ra
incriminatory of the accused by the device of first tempting or provokingthe witness to deny the incriminatory matter. While such a course maybe cf some advantage in casting doubts on the general credibility cf thewitness, its more serious consequence is to cause grave prejudice to theaccused.
There was however ample evidence from the witness Premaratne andthe witness John Fernando as to the stabbing of the deceased woman bythe appellant and the strong motive for the stabbing. Under the provisoto section 5 (1) of the Court of Criminal Appeal Ordinance we upheld theconviction and dismissed the appeal.
Appeal dismissed.