112-NLR-NLR-V-54-CHELLIAH-Appellant-and-THE-QUEEN-Respondent.pdf
NAGALESTGAM A.C. J.—CheUiah v. The Queen
465
[Court of ChiminAx. Appeal]
1952 Present : Nagalingam A.C. J. (President), Gunasekara J.and Swan J.CHELLIAH, Appellant, and THE QUEEN, RespondentAppeal 18 with Application 26 of 1952S. C. 4—M. C. Jaffna, 22,799
Trial before Supreme Court—Failure of accused to give evidence—Adverse commentby Court—Scope of inference against accused—Misdirection.
In a trial before the Supreme Court, the accused neither gave evidence onoath nor made an unsworn statement. Commenting on this circumstancethe Judge directed the Jury that it would be a factor which they could takeinto consideration for the purpose of drawing an inference adverse to the defenceset up by the accused. He did not, however, explain to the Jury the natureof the inference they could draw.
Held, that there was a misdirection in law.
.^LpPEALi, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
M. M. Kumarakviasingham, with T. W. Rajaratnam, for the accusedappellant.
H. A. Wijemanne, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
May 26, 1952. Nagalingam A.C.J.—
At the conclusion of the argument we made order allowing the appealand acquitting the accused. We now proceed to give our reasons.
The prisoner was convicted of having committed an offence undersection 191 of the Penal Code in that he had given false evidence intendingthereby or knowing it to be likely that he would thereby cause oneKandiah Vyramuttu to be convicted of the offence of murder. Theprisoner neither gave evidence on oath nor made an unsworn statement.Commenting on this circumstance the learned trial Judge in his chargeto the Jury expressed himself thus :
“ The accused has not given evidence in this case. If he so wishedhe could have given evidence, but he can also refrain from givingevidence. Do not draw an adverse inference against the accusedbecause he has not given evidence. That is just one small item whichyou can take into consideration, but do not necessarily base a verystrong adverse inference from that fact alone. If he so wished hecould even have made an unsworn statement from the dock. ”
466
NAGAXrlNGAM A.C.J.—Ckelliah v. The Queen
l
The question for determination was whether this passage amounted to amisdirection so as'to vitiate the conviction.
Although the learned Judge told the Jury, “ Do not draw an adverseinference against the accused because he has not given evidence ”, yetwhen he proceeded to direct them that the circumstance of the accusednot having given evidence was just one small item which they couldtake into consideration, and that they should not necessarily base a verystrong adverse inference on that circumstance alone, it is difficult to saythat the effect of the earlier direction that the absence of the prisonerfrom the witness-box was not to be made the basis of an adverse inferenceto be drawn against him was not entirely whittled away. On thecontrary, it may be said the Jury were given the impression that theabsence of the prisoner from the box was a circumstance which theycould take into consideration, upon which though they might not basea very strong adverse inference, they might nevertheless base some sortof strong adverse inference against him, or that in some view of the matterthey were entitled to base a very strong adverse inference against theprisoner.
In considering this question one has also to look at the last sentenceof the passage excerpted, wherein the learned Judge again stressed thefact that the prisoner had not even made an unsworn statement from thedock. The emphasis given to the passage by the use of the word “ even ”,clearly in the context in which that sentence occurs, would have indicatedto the Jury that the failure of the accused either to get into the witness-box and give evidence or to make an unsworn statement would be afactor which they could take into consideration for the purpose ofdrawing an inference adverse to the defence set up by the prisoner.
Tri the case of King v. Duraisamy 1 where the charge contained thedirection, “ so where there is evidence adduced by the Crown whichimplicates the prisoner and the prisoner does not give evidence, youare entitled to draw an inference against him from that fact ”, but thenature of the inference that could be drawn was not explained, thoughit was repeatedly stressed that it was not for the prisoner to prove hisinnocence, this Court held that such a direction amounted to a misdirectionsufficient to vitiate the conviction. This Court took the view
“ that in the absence of an explanation of the nature of the inferencethe Jury were * entitled to draw ’ against the accused as he had notgiven evidence, they may have felt entitled to draw the inference thatthe prosecution evidence was true. ”-
In that case, Heame J., who delivered the judgment of the Court, quiteproperly, if I may respectfully say so, stated the principle underlying tobe that “ the standard of proof required in criminal cases remains constant,irrespective of the fact that the accused has not given evidence ”.
If an inference that the accused person is guilty be permitted to bedrawn from the fact that he has not chosen to get into the witness-boxand deny the case set up against him by the prosecution, whatever theinfirmities of that ease may be, it would be easy to see that far from the
i (I942) 43 1V. L. JR. 241.
467
,Afiamadulevve Kaddubawa v. Santnugam
burden of proof remaining from start to finish on the prosecution it getsshifted to the accused on the close of the case for the prosecution, whateverthe case established against the accused may be, a proposition whichunder our law at any rate carries with it its own condemnation.
In a later case, King v. Geekiyanage John Silva x, this Court had occasionto consider the effect of a direction that the failure of the accused to giveevidence was an element that they may take into consideration indiscussing whether the Crown has proved the case beyond all reasonabledoubt, and came to the conclusion that there was no misdirection. Itwas pointed out that the charge “ makes it clear that the Jury are notto convict if they have a reasonable doubt The case of King v. Durai-samy (supra) was distinguished on, the ground that in that case theJudge “ did not explain the nature of the inference ” that the Jury wereentitled to draw against the accused, and
“ also said that in deciding the Crown case, whether it had beenestablished beyond reasonable doubt, the Jury were to take noticethat the accused had not given evidence at all without pointing out tothem that the existence of a reasonable doubt enured to the benefitof the accused whether he gave evidence or not. ”
In the present case, however, as in Duraisamy’s Case, the learned Judgedid not explain to the Jury the nature of the inference they could drawand in the absence of such explanation “ they may have felt entitledto draw the inference that the prosecution evidence was true ”. Thecharge, therefore, to the Jury cannot be said to be one which did notcause serious prejudice to the prisoner. Therefore, the conviction cannotstand. The case against the prisoner, having regard to the entire bodyof evidence adduced by the prosecution, is a weak one, and justice inthese circumstances demands that the accused should not be placedin jeopardy once again. Hence the acquittal.
(1945) 46 N. L. R. 273.
Appeal allowed.