051-NLR-NLR-V-76-W.-A.-FERNANDO-Appellant-and-THE-QUEEN-Respondent.pdf
SHUMANE, J.—Fernando v. The Queen
265
[Court of Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President),Sirimane, J., and Weeramantry, J.
W. A. FERNANDO, Appellant, and THE QUEEN, Respondent
Appeal No. 44 of 1971, with Application 63
S. C. 424/70—M. C. Chilaw, 26953
Evidence—Charge of murder—An item of evidence casting seriousdoubts on guilt of accused—Duty of jrrosecutor to mention it toCourt.
Where, at a trial upon an indictment for murder, extracts fromthe Police Information Book disclosed an item of evidence whichcast serious doubts on the accused person’s guilt—
Held, that, though a prosecutor is not hound to expose everyinfirmity and weakness in his case, yet when a person is broughtup on a capital charge, and there is some item of evidence whichcasts serious doubts on his guilt, it is the duty of the prosecutorto draw the attention of the trial Judge to such evidence.
A.PPEAL against a conviction at a trial before the SupremeCourt.
M.A. Mansoor (Assigned), for the accused-appellant.
J. R. M. Perera, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
June 6, 1971. Sirimane, J.—
This appeal is against the conviction for murder and sentencecf death passed on the appellant.
The prosecution alleged that, around mid-night, the appellanthad entered the house of the deceased through the roof, andstruck both the deceased and his wife Maria with a blunt weapon,probably ah iron rod.
The deceased succumbed to his injuries a couple of days later.He and his wife were both over 70 years of age ; and as there wereno other inmates of that house, the prosecution case dependedmainly on the identification of the appellant by Maria. Shestated in evidence that on hearing a noise she got up, lit a lampand saw the appellant striking a blow on her husband followed
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1*—A 01188—2,808 (78/09)
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SIRIMAJNE J.—Fernando v. The Queen
by a blow on her. She knew the appellant. He had been theirtenant for about six months, and had left a few days beforethis incident after some unpleasantness, having, it is alleged,uttered a veiled threat. The prosecution relied on this fact asevidence of motive. If, indeed, he had been seen by Maria, sheshould have had no difficulty in identifying a person whom sheknew so well.
The defence strongly challenged this evidence, and placedbefore the Jury the deposition of the Doctor who had examinedMaria and her husband at about 10 00 a.m. next morning. Bothof them had told him that they were assaulted “ by burglars ”.
In dealing with this serious discrepancy, the learned trialJudge had addressed the Jury as follows : —
“ It is a fact, is it not, that if this accused had enteredthe house, one may fairly assume that he had come to burgle,because Maria Fernando did not know at that stage whethershe had lost any articles in the house, because she was atthat time in hospital. Of course, it is correct that in thatstatement neither the deceased nor Maria Fernando hasmentioned the name of the accused. It is a point that hasbeen made by learned Counsel for the defence, but it is amatter entirely for you, Gentlemen, having regard to thecondition in which the deceased and Maria Fernando wereat the time”
In other words, that Maria and her husband could have des-cribed the appellant as a “ burglar ” to the Doctor, instead ofmentioning his name. A Doctor, of course, does not question apatient with a view to ascertaining the identity of the assailant.All he wants to know is “ the history of the case ”, as it is called,for purposes of treatment. But as it appeared to us that thediscrepancy was a very serious one, we thought it necessary inthe interests of justice to ascertain what exactly the witnessMaria and her husband had told the Police Officer whoquestioned them, undoubtedly with the primary object ofascertaining the identity of the assailant. The extracts from thePolice Information Book furnished to Court show that theirstatements were recorded at 5.15 p.m. on the following evening.Both of them had categorically stated that they did not knowwho their assailant was.
Though a prosecutor is not bound to expose every infirmityarid weakness in his case, yet when a person is brought up on acapital charge, and there is some item of evidence which casts
SLRIMANE, J.—Fernando v. The Queen
267
serious doubts on his guilt, we think it is the duty of the Crownto draw the attention of the trial Judge to such evidence. Hadthis been done, as was pointed out by this Court in Muthubandav. The Queen the trial Judge would undoubtedly “ have promi-nently placed this matter before the Jury and drawn theirattention to the serious discrepancy between the evidence inCourt and the statements to the Police.”
Indeed, the doubt arising from the evidence of the Doctormight well have moved the trial Judge to peruse Maria’sstatement to the Police, and to utilise it at the trial.
The learned Crown Counsel submitted that the Jury may haveconvicted the appellant on circumstantial evidence. The case wasnot presented on that basis, and the learned trial Judge gaveno directions whatsoever on circumstantial evidence. What werethe circumstances ? If Maria’s evidence is eliminated, there wasonly the evidence of motive referred to earlier, and the evidenceof one Marimuttu who had stated, somewhat belatedly, wethink, that on flashing a torch he saw the appellant fleeing fromthe scene. This type of evidence is always viewed with suspicion,and is not generally acted upon even in those rare instances whenit happens to be the truth,—for, an innocent man may flee froma scene of offence for a variety of reasons. In this instanceMarimuttu added further that Maria mentioned to him the nameof the appellant as the assailant, i.e., long before her statementsto the Doctor and the Police !
Learned Crown Counsel also suggested that we might considerordering a re-trial.
In the circumstances of the present case, we do not think itfair to place the appellant in jeopardy a second time—and toplace him in a position obviously more disadvantageous than atthe trial which he has already faced.
Had the statements made by Maria and the deceased beenplaced before the Jury, it is impossible to say that they wouldhave returned a verdict adverse to the appellant.
At the close of the arguments, therefore, we quashed theconviction and acquitted the appellant.
Accused acquitted.
(1969) 73 N. L. It. ft.