BASNAYAJtE J.—Aron v. Amarawardens.
1948Present: Basnayake J.
ARON, Appellant, and AMARAWARDENE (Excise Inspector),
S. C. 1,320—M. O. Horana, 3,652.
Evidence—Irrelevant evidence of character—Does it vitiate conviction !—Functions ofAppellate Court—Evidence Ordinance, section 167.
The admission of irrelevant evidence as to the character of an accused doesnot necessarily vitiate his conviction. It is open to the Appellate Court toapply the provisions of section 167 of the Evidence Ordinance and upholdthe verdict if there is sufficient admissible evidence to justify it.
■A.PPEAL from a judgment of the Magistrate, Horana.
M. M. Kumarahulasinqham, -with S. Walpita, for accused, appellant.
C. Attes, Crovm Counsel, for the Attorney-General.
Cur. adv. wit.
February 5, 1948. Basnayake J.—
The accused-appellant was charged with the sale and possession offermented toddy at Horana on September 3, 1947, in breach of sections16 and 17 of the Excise Ordinance and was after a trial in which he wasrepresented by Counsel convicted and sentenced to pay a fine of onehundred rupees in respect of each charge.
It is urged by Counsel for the appellant that the conviction should beset aside on the ground of the admission of irrelevant evidence of characterof the appellant. The statements to which exception is taken were madeby the witness Surabiel, the Excise decoy, and are italicised in hisevidence in cross-examination and re-examination set out hereunder.
*' XXd—I do not live near the Excise Station. Deonis’ house isbehind the accused’s house. I did not see any one in that house.1 have bought toddy from this accused about a week earlier. I did not.ask for the change when I tendered the rupee. A glass costs 25 cents.Accused did not run through the fields. I have not acted as a decoyfor about ten years prior to this. I was wearing a banian and sarong.The accused was wearing a red sarong. I deny that I was taken intothe accused’s garden this morning.
Rxd—1 have bought toddy from this accused on two occasions beforethis. I did so on instructions from the Excise Inspector.”
Appellant’s Counsel relies on the case of Coomarasamy v. MeeraSaibo v and The King v. Kotdawala 2. The former case contains noindication of the circumstances in which the statements reflecting on thecharacter of the accused were made nor am I able to reconcile thatdecision with the provisions of section 167 of the Evidence Ordinance.In the latter case following the decision of the House of Lords in Maxwellv. Director of Public Prosecutions 3 the conviction of the accused was set
1 (1940) 5 C. L. J. 68.* (1941) 42 N. L. R. 265.
(1935) A. C. 309.
BASNAYAJdS J.—Aron v. Amarawardene.
aside and a re-trial ordered by the Court of Criminal Appeal on theground that it was impossible to say that the evidence improperlyadmitted was not the' deciding factor which made the Jury give their•verdict. In a later case Stirland v. Director of Public Prosecutions1 theHouse of Lords did not interfere with a conviction where apart altogetherfrom the impeached evidence there was an overwhelming case provedagainst the accused.
The powers of the appellate Court in the event of misreception ofevidence is stated in section 167 of the Evidence Ordinance whichdeclares that the improper admission or rejection of evidence shall not be aground of itself for a new trial or reversal of any decision in any case, ifit shall appear to the Court before which such objection is raised that,independently of the evidence objected to and admitted, there issufficient evidence to justify the decision.
There is no doubt that this section applies to cases in which irrelevantevidence of character has been admitted in evidence. In the case ofKing v. Pila 2. where several witnesses stated in evidence that they weredeterred from coming forward to give evidence by the fact that theaccused were reputed rowdies, gamblers and thieves, Lascelles C.J.while declaring the evidence of character as irrelevant observed :—
“ There can be no question but that this Court, under section 167of the Evidence Ordinance, has power to uphold the conviction, if weare of opinion that the evidence improperly admitted did not affectthe result of the trial. ” (at 458)
It is not out of place to repeat the words I quoted from the PrivyCouncil case of Abdul Rahim v. Emperor3 in my recent judgement in caseNo. 35,300 from the Magistrate’s Court of Puttalam 4 wherein the functionof the appellate Court in applying section 167 of the Evidence Ordinanceis elaborated :—
“ The appellate Court must apply its own mind to the evidence,and after discarding what has been improperly admitted decidewhether what is left is sufficient to justify the verdict. If the appellateCourt does not think that the admissible evidence in the case is suffi-cient to justify the verdict then it will not affirm the verdict and mayadopt the course of ordering a new trial or take whatever other courseis open to it. But the appellate Court if satisfied that there is suffi-cient admissible evidence to justify the verdict, is plainly entitled touphold it. ”
In the present case the finding of the learned Magistrate does notrest on the evidence to which exception is taken, and I am satisfied thatthere is sufficient evidence to justify the verdict. There is nothinghere to indicate that the statements objected to were either the decidingfactor for the prosecution or occasioned a failure of justice. The appealis dismissed.
(1942) 2 AU-E. R. 13.
(1912) 15 N. L. R. 453 (F. B.)
(1946) A. I. R. Privy Council 82 at 85.S. C. Minutes of January 5, 1948.