D. K. LOPNEL, Accused-Appellant and THE REPUBLIC OF SRI LANKA

051-NLR-NLR-V-79-1-D.-K.-LOPNEL-Accused-Appellant-and-THE-REPUBLIC-OF-SRI-LANKA.pdf


Lionel v. Kepublib of Sri Lanka
563
1976 Present: Tennekoon, C.J., Thamotheram J.,* Sirimane, J.,Kajaratnam, J. and Sharvananda, J.D. K. LIONEL, Accused-AppellantandTHE REPUBLIC OF SRI LANKAS. C. 165/75—H. C. Calle 41/74
Criminal Procedure—Administration of Justice Law, sections 134, 138168, 184, 213—Duty of Judge to inform accused of his right togive evidence—Judge must address the accused himself—Thedecision whether to give evidence or not must be that of theiaccused, though assisted by his legal adviser—Inferences to bedrawn from failure of accused to give evidence.
The accused was indicted on a charge of attempted murder. Atthe close of the case for the prosecution, the court called uponthe accused for his defence and proceeded to inform him (a) thathe had a right to give evidence ; (b) that his failure to give evidenceor make a statement from the dock does not mean that the casefor the prosecution is true, nor does it mean that he is guilty ofthe offence nor does it corroborate the case for the prosecution;(c) however, it is possible for Counsel for the prosecution^ tocomment on his failure to do so, and for the jury to take intoaccount that fact in considering the entire case.
The Court thereafter directed the Registrar to ask the accusedwhat he proposes to do and the accused stated “ I want to giveevidence by entering the witness box. ” Counsel for the accusedthereupon informed Court that he does not propose to call the accusedto give evidence. On being questioned as to whether he is preparedto take Counsel’s advice and not give evidence, the accused statedthat he now does not wish to give evidence.
It was contended on behalf of the accused (i) that the words“ if the Judge calls upon the accused for his defence, the Judge shall
before any evidence is called by the accused inform him ”
in section 213 c.f the Administration of Justice Law indicate that theJudge must first ascertain whether the defence is calling anyevidence and it is only if the defence proposes to call evidence thatthe Judge would be obliged to inform the accused of his rights ;(ii) that the Judge was wrong in having asked the accused himselfwhat he (the accused) proposes to do, when he was being defendedby an attorney ; (iii) that it is insufficient for the Judge to have toldthe accused in general terms of the effect of his failure to giveevidence without reference to the particular facts of the case.
He’d : (i) That the expression “ before any evidence is called bythe accused ” is merely directed towards fixing the precise stage atwhich the Judge is called upon to act under section 213 (1), viz.immediately after he has called upon the accused for his defence ;this view is confirmed1 by the language of section 138 (1) whichreads ‘ at every trial, if and when the Court calls upon them accused
for his defence it shallinform him that he is entitled to
give evidence” (ii) That the duty of the Judge to inform
the “ accused ” that he is entitled to give evidence must be addressedto the accused himself and the decision whether or not the accusedis to give evidence must' be that of the accused himself ; where,
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however, the‘accused is defended by an Attorney, the decision mustbe taken by#the accused in consultation with his Attorney and notin the preserve of the Judge and Jury ; the decision as to the courseto be followed must be announced by the Attorney for the accused.
<iii) What the Judge is required to tell the accused is the effectin laio (independently of the facts of the particular case) of thefailure to give evidence.
Obiter : Observations on the right of the prosecution and of theJudge to comment upon the failure of the accused to give evidence.
Cases referred to :
The Republic v. Gunawardena, 78 N.L R. 209.
R. v. Sparrow, (1973) 2 All E.R. 129; (1973) 1 W.L.R. 488; 57 Cr.
App. R. 52.
Rhodes Case, (1899) 1 Q.B. 77; 29 L.T. 360; 15 T.L.R. 37; 68 L.J.Q.B.
Of>
Appeal
against a conviction in the High Court, Galle.
Colvin R. de Silva, with Mrs. Manouri Muttettuwegama,Weerasinghe de Silva, S. L. Gunasekera and S. C. Chandrahasan.for the accused-appellant.
Ranjith Abeysuriya, Director of Public Prosecutions, with TilakMarapana, Senior State Counsel, and P. Ramanathan, StateCounsel, for the Attorney-General.
Cur. adv. vult.
December 20, 1976. Tennekoon, C.J.
This appeal was originally argued before a bench of threeJudges consisting of Justice Thamotheram, Justice Sirimane andmyself. After judgment was reserved, the three of us felt thatsome of the questions of criminal procedure that came up forconsideration in this appeal were of sufficient public importanceto warrant the case being placed before a bench of five Judges.
In this case, four persons were indicted on a charge ofattempted murder of one Piyadasa. They were—
D. K. Lionel,
P. V. Sumanadasa,
U. h. Karunapala, and
D. K. Nandasena.
TENNEKOON, C. J.—Lionel v. Republic oj Sri Lanka
665
The 3rd acused died before trial. At the trial the Jury foundthe 2nd and 4th accused to be not guilty of any offence ; the1st accused was found guilty of attempted mihrder; it is hisappeal that is now before us. The Judge sentenced him to aterm of 15 years rigorous imprisonment.
The main witness for the prosecution was the injured Piyadasa.He was a taxi driver who was accustomed to park his car atthe Hapugala junction. Piyadasa testified that some time beforethis incident, an assistant of the appellant (1st accused) hadsuggested that Piyadasa should keep some arrack in hisboutique ; he refused and, thereafter, the appellant wasdispleased with him. Sometime after that the 1st accused andanother were alleged to have set fire to a cad j an building whichPiyadasa was putting up; he made a complaint to the Concilia-tion Board which held an inquiry on the morning of the veryday of this incident. The Conciliation Board was able to bringabout a reconciliation between the parties. Piyadasa then saysthat after having taken his midday meal he was having a siestain the rear seat of his car which he had parked near theHapugala junction ; he had the doors of the car open. Then heheard a sound and saw the 1st accused coming up to the opendoor and trying to stab him saying, “ I must kill you and eatyou He managed to catch hold of the assailant’s hands andwas propelled out of the car when the 4th accused gave hima blow on the neck ; then Piyadasa ran to the boutique of oneJayasundera, which was almost in front, about 52 feet away.The 1st accused who was chasing him stabbed him twice atthe steps of the boutique. Thereafter, the 2nd accused andKarunapala (now dead) came from the direction of the postoffice. He and the four accused had a struggle in the boutique.Inside the boutique, the 1st accused again stabbed him on thechest. The other three accused who were unarmed assaultedhim with hands. After that he got away from the place andwent to a laundryman’s place close by, bandaged himself anddriving his own car set out for the hospital, but feeling weakthrough loss of blood, he got into a vehicle transporting sand,the driver of which kindly took him to hospital.
Piyadasa’s evidence in regard to what happened inside theboutique was corroborated by the evidence of one Jayasundera,son of the owner of the boutique. Jayasundera did not witnessthe start of the quarrel, nor did he see anyone stabbing Piyadasa.Ke, however, did see Piyadasa running into the boutiquechased by the 1st accused. He says he saw a struggle in which
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TENNEK.OON, C. J.—Lionel v. Republic of Sri Lanka
that struggle, a showcase in the boutique was upset as a resultof the 1st accused tumbling against it. Jayasundera also saysthat after the Jpcident the four accused departed. Piyadasa hadserious injuries*; the 1st accused also had an incised injury onhis left cheek which required suturing. He saw a blood stainedknife in the hands of the 1st accused. The injured man Piyadasaleft and had his wound dressed at the laundryman’s place.During the course of the cross-examination of Piyadasa, counselfor the 1st accused suggested to him that he was angry that hehad been compelled to settle his complaint at the ConciliationBoard, and that in that state of mind, he with another companionby the name of Martin Anthony waited for the 1st accused topass that way on his way back from the Conciliation Boardoffice to get back to his boutique, and that Piyadasa andAnthony set upon the 1st accused and that this was the startof the incident. Piyadasa denied this suggestion. He was, how-ever, contradicted on one point by the evidence he had givenin the Magistrate’s Court where contrary to what he said inevidence that he was satisfied with the settlement, he had said :
“ I do not like the Conciliation Board’s order. We com-pounded the case on the instructions of the Chairman of theConciliation Board”.
Piyadasa denied having said so in the Magistrate’s Court.The suggestion that Piyadasa and Martin Anthony had lain inwait for the 1st accused and that the incident started withtheir attacking the 1st accused, was put also to Jayasundera.The witness denied that such a thing happened.
The medical evidence was to the effect that apart from someincised wounds, Piyadasa had a serious injury on the chestwhich endangered life. There were also two penetrating injurieson the back, one of which had apparently perforated the leftlung. The 1st accused had a cut injury on his cheek which hadto be sutured. Martin .Anthony, whose name was on the indict-ment as a prosecution witness and in attendance, was not calledby the State.
The 1st accused has not given evidence or made a statementfrom the dock. In the result, the suggestions that were put towitness Piyadasa were not supported by any evidence and theyremained mere suggestions and the learned trial Judge did notfeel himself obliged quite rightly to give any detailed directionsof defences such as the right of private defence, or grave andsudden provocation, or of sudden fight. While the counsel for
TKNNEKOON, C. J. — Lionel v. Republic cf Sri Lanka557
the appellant makes no complaint about the Judge’s summing-up in that regard, a complaint of a different nature is madewhch relates not to the Judge's summing-up, but to an incidentwhich it has been submitted may wejl have had the result ofdepriving the 1st accused of a fair trial.
When the prosecution closed its case, the Court called uponeach accused for his defence and proceeded to inform each ofthe accused, inter alia, that he had a right to give evidenceunder oath and subject to cross-examination ; the accused wasalso told that if he does not make a statement from the dockor give evidence from the witness box “ it is possible forcounsel for the prosecution to comment on your failure to doso The learned Judge also added :
“ But your failure to give evidence or make a statementfrom the dock does not mean that the case for the prosecu-tion is true. Nor does it mean that you are guilty of thc-offence, nor does it mean that it corroborates the case forthe prosecution. But it is possible for the Gentlemen of theJury to take your failure to give evidence or make a state-ment frem the dock in considering the entire case. You canalso call evidence on your behalf.”
The learned trial Judge then directed the Registrar to ask the1st accused what he proposes to do, and on being questioned bythe Registrar the 1st accused said :
“ I want to give evidence by entering the witness box. ”
The 2nd accused, who was ultimately acquitted, said :
‘ icjscJSccsh? scssSzr:zxza ’ which has been interpreted
in Court as : “I have no evidence to give ” but manifestly means“ there is nothing to give evidence about ”. The 2nd accused saidthat he was prepared to make a statement from the dock. The 4thaccused said that he was not making a statement from the dockor giving evidence from the witness box.
Thereafter the Court asked the 1st accused whether he wascalling any witnesses. The record reads—•
“ The 1st accused says he is not calling any witnesses. The2nd accused says that he is not calling any witnesses. The4th accused says that he is not calling any witnesses. ”
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
The record thereafter reads as follows : —
“ Mr. Mgndis says that as counsel for the 1st accused hedoes not propose to call the 1st accused to give evidence.He says he will call only the Registrar of the Court and apolice officer to prove the contradictions.
COURT : When the 1st accused expressed his willingnessto enter the witness box and to give evidence after I hadaddressed him in terms of section 213 of the Administrationof Justice Law, No. 44 of 1973, I informed the 1st accused ofwhat Mr. Mendis has submitted to Court. I informed the1st accused that Mr. Mendis has submitted to Court in hisopinion it is not necessary for the 1st accused to giveevidence. Mr. Registrar, ask him what he has got to saynow ? The 1st accused is asked whether he still wants togive evidence or whether he is prepared to take his Counsel’sadvice and not give evidence from the witness box.
The 1st accused now states that he does not wish to giveevidence.”
After the Jury had been kept out of Court while anothermatter was being disposed of, the Jury returned and the followingfurther proceedings are recorded—
“Mr. Jayasinghe :I wish to make an application withYour Lordship’s permission, namely to tell the 2nd accusednot to make a statement even from the dock as it is notnecessary.
COURT : Mr. Registrar, tell him what Counsel has said.The 2nd accused s^ys that I have nothing to say.
COURT : That is. you have taken your Counsel’s advice ?
Y^s, Sir.
COURT: And you now withdraw your willingness tomake a statement from the dock ?
Yes, Sir.”
TEJTNTSKOOJf, C. J. —Lionel v. Republic of Sri Lanka
559
In the summing-up, the learned trial Judge recounted theentire episode ; he went on to say as follows : —*
“ In this case, Gentlemen, Counsel for the 1st accusedMr. Harischandra Mendis is not on trial. His decision,Gentlemen, whether to call the accused or over-rule theaccused is not before you as an issue in the case. You heardeverything that took place. Nor is Counsel for the 2ndaccused’s decision to prevent the 2nd accused making astatement from the dock in question. But, you, Gentlemen,must as reasonable men, take into account the effect of thefailure of the accused to give evidence in law. I told you,Gentlemen, if they are relying on a general or specialexception, the burden is on them. I told you how that burdencan be discharged. Now, in this case the question arises ifthe defence is relying on a general or special exception whichI referred you to, has that burden been discharged ? That isa matter for you Gentlemen. ”
At the outset of the case, the learned trial Judge told the Juryas follows : —
“ There is no burden on any one of them to prove anything,certainly not their innocence unless they rely on somegeneral or special exception. At a later stage of the case ifsuch an occasion were to arise I will give you the necessarydirection in law.”
The learned trial Judge subsequently said :
“ Now Gentlemen, as I told you, there is no burden on anaccused to prove anything, certainly not his innocence. Noclear-cut defence has been taken in this case apart fromsaying that the prosecution has not proved its case beyondreasonable doubt; but, certain suggestions have been made.
Now, I am going to deal with these suggestions. Youremember Piyadasa ; it was suggested to Piyadasa that hewas aggrieved by the Conciliation Board settlement and,therefore, he was hiding in the garden behind those twoconcrete pillars under the coconut trees waiting for the 1staccused who had to pass that way to his boutique and thatPiyadasa was in the company of a strong man called AnthonyMartin and it was suggested that this happend there. Thatwas all that was suggested to Piyadasa. As to who stabbedPiyadasa, whether the stabbing took place entirely there, orhow it came to Jayasundera’s boutique, was not suggested to
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
Piyadasa, but it was suggested to Jayasundera by counselfor the fir^t accused. It was suggested to Jayasundera thatthe fight smarted near the concrete pillars and ended in hisboutique. You see (gentlemen, that part was not put toPiyadasa; it was only put to Jayasundera. But thesuggestions made to Piyadasa and Jayasundera were bothdenied by them. Gentlemen, I told you at the commencementthat sort of defence raised is likely a defence of self-defence.That is the suggestion made by the defence, and I told youthat where an accused person raises a defence of generalexception or special exception, the burden is on him toprove by a balance of probability. The defence can dischargethat burden by calling evidence or by relying on theprosecution story itself if it gives rise to such a defence.But in this case, Gentlemen, the prosecution has denied thesesuggestions. Suggestions can never take the place ofevidence. You can make the wildest allegation againstanybody or suggestions against anybody, but you asreasonable men must consider whether they reasonablyarise on the evidence ”.
The Judge went on further to give the jury a brief directionon the defences of private defence, sudden fight and provocation.He finally said in regard to his defence:
“ If you believe the suggestion made by the defence thathe was set upon and this happened when he was defendinghimself, although he did not raise it specifically, then youmust acquit him ”.
The trial Judge himself was of the view that appellant’sCounsel had over-ruled the desire of the accused to give evidence,for at one stage the Judge said :
“ His (1st accused’s Counsel’s) decision whether to call theaccused or over-rule the accused is not before you as an issuein the case, nor is Counsel for the 2nd accused’s decision taprevent the 2nd accused making a statement from the dockin question ”.
It has been submitted that the episode which occurred justafter the close of the prosecution case caused grave prejudice tothe applicant.
If one now looks at the relevant provisions of theAdministration of Justice Law relating to procedure at criminaltrials one oomes first of all upon section 138(1) whicfi appears
TENNEKOON, C- J.—Lionel v. Republic of Sri Lanka
661
under the general heading “ Of Trials Generally ” and isobviously intended to apply to every trial under tjie Administra-iton of Justice Law, whether it be in the Magistrate's Court, theDistrict Court or the High Court.
Section “ 138(1) At every trial if and when the court callsupon the accused for his defence it shall, if he is notrepresented by an attorney-at-law, inform him that he isentitled to give evidence on his own behalf and of the legalconsequences of his failure to do so, and shall call his atten-tion to the principal points in the evidence for the prosecutionwhich tell against him in order that he may have anopportunity of explaining them.
(2) The failure at any trial of the spouse of the accusedto give evidence shall not be made the subject of adversecriticism by the prosecution
Upon a reading of this section one is left with the impressionthat by affirming a duty on the part of the Judge to inform theaccused of his right to give evidence and the legal consequencesof his failure to do so, only in one eventuality, viz., if theaccused is undefended, the Legislature was denying the existenceof such a duty where the accused was in fact defended by anAttorney ; and since an accused person, who in the exercise ofthe right given to him under section 136 of the same law, haselected to be defended by an Attorney of his own choice does notstand in need of legal advice from the Judge, one is inclined tothink that the Legislature could not have intended to require theJudge to give advice on the law to an accused who has anAttorney es his own legal adviser.
However, when one comes to subsequent provisions in theAdministration of Justice Law dealing separately wiili trials inMagistrate's Courts, District Courts and High Courts one findsthese respective provisions :
Magistrate’s Courts—
“ 168 (2) At the close of the case for the prosecution, if theMagistrate calls upon the accused for his defence, theMagistrate shall, before any evidence is called by theaccused, inform him that he is entitled to give evidence inhis own defence and shall tell him in ordinary language whatthe effect in law will be, if he does not give evidence.
(3) If upon the Magistrate calling for the defence, theaccused does not give evidence, the Magistrate, in determin-
562
TENNEKOON, 0. J. Lionel v. Republic oj Sri Lanka
ing whether the accused is guilty of the offence charged, may-draw such# inference from such failure as appear proper.
Nothing in this section shall be taken to render theaccused compellable to give evidence on his own behalf
District Courts—
“ 184 (1) If the Court calls upon the accused for hisdefence, the Court shall, before any evidence is called by theaccused, inform him that he is entitled to give evidence inhis own defence and shall tell him in ordinary languagewhat the effect in law will be if he does not give evidence.
If upon the Judge calling for the defence, the accuseddoes not give evidence, it shall be open to the prosecutionto comment upon the failure of the accused to give evidenceand the Court, in determining whether the accused is guillyof the charge, may draw such inferences from such failureas appear proper.
Nothing in this section shall be taken to render theaccused compellable to give evidence on his own behalf
High Courts—
“ 213 (1) If the Judge calls upon the accused for his defence,the Judge shall, before any evidence is called by the accused,inform him that he is entitled to give evidence in his owndefence and shall tell him in ordinary language what theeffect in law will be if he does not give evidence.
(2> If upon the Judge calling for the defence, the accuseddoes not give evidence, it shall be open to the prosecution tocomment upon the failure of the accused to give evidenceand the jury, in determining whether the accused is guiltyof the offence charged, may draw such inferences from suchfailure as appear proper.
(3) Nothing in this section shall be taken to render theaccused compellable to give evidence on his own behalf ”.
In ea<*h of the sections 168(2), 184 (1), and 213(1) the plainmeaning is that the duty of the Judge to inform the accused ofhis right to give evidence and of the consequences of the failureto do so, arises in every case where an accused is called upon forhis defence irrespective of whether or not he is defended by an
TliNNEKOON, C. .T.—Lionel v. Republic if Sri Lanka
36.T
Attorney ; and to that extent there is an apparent conflict withthe necessary implication contained in section 138 (1). If theseprovisions when given full effect remain irreconofiable one musthave recourse to that rule of construction which I find best statedin an extract from a judgment quoted at page 670 of Crawford’sbook on Construction of Statutes :
“ It is said that the Code was adopted by the legislatureuno flato, and speaks with a simultaneous voice in all of itsprovisions. That is true in the same sense and to the sameextent of any ordinary statute consisting of several sectionsenacting the law on a particular subject. The Act as a wholeis put to the vote of the Legislature ; if it receives a majorityof the voices, it has passed (as we say) ; and when that factis certified…. it becomes law. And yet if we find a latersection in such Act repugnant to a former one the Latermust be accepted as repealing the former.
A statute is the will of the law making power, in the samesense that a testament is the will of a testator. The latestdeclaration must be accepted as the final intention andpurpose ”,
unless of course there is something peculiar or exceptional inthe law which would require a departure from this general rule.On this approach I would give section 168(2), 184(1), and 213(1)their plain meaning, disregarding any implications arising fromsection 138(1).
Since we are concerned with a High Court case in which theaccused-appellant was defended by an Attorney, section 213 of theAdministration of Justice Law must be the provisions to belooked at for the procedure to be followed.
In the 1960’s as was pointed out by the Director of PublicProsecutions, there appears to have been a body of opinion inEngland that the effect of the law relating to procedure at crimi-nal trials was to load the scales heavily against the prosecution.Indeed a Committee appointed by the Home Secretary in 1964under the Chairmanship of Lord Edmund Davies, aft«gr eightyears of investigation, hearing evidence and obtaining representa-tions from persons and bodies concerned in the administrationor teaching of law did come to the conclusion that certain of theold '.and existing rules of Criminal Procedure had ceased to beappropriate in modern conditions in England.
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
In the lord Davies report, presented to the Home Secretary-in 1972 (Corni^d. Paper 4991 of 1972) many radical alterationsin Criminal Procedure were recommended and a draft Billsubmitted to give effect to those recommendations.
The British Government, however, does not appear to haveaccepted any of the recommendations of this Committee, forthe Procedure in criminal trials in England still remains whatit was prior to 1972.
The draftsman of our Adminsitration of Justice Law appearsto have been thinking on the same lines as members of the LordDavies Committee for as pointed out by the Director of PublicProsecutions there is at least in patches a remarkable identityof concept and remarkably enough, even of language in someplaces between the Draft Bill proposed by the Lord DaviesCommittee and the Administration of Justice Law.
The Director of Public Prosecutions has pointed out to anincident in the National State Assembly when the Administra-tion of Justice Law was before that House.
When the Administration of Justice Law was brought beforethe National State Assembly in Bill form, section 138 (1)—thennumbered section 83(1)—provided that “at every trial, if andwhen Ihe Court called upon the accused for his defence, theCourt shall, if the accused is not represented by an attorney,inform him of his obligation to give evidence on his own behalf
and of the consequences of his failure to do so” The rest
of the section read as it does now.
Upon protest by a member of the House at this proposal toplace an obligation upon an accused person to give evidence—•and that too only if he happens to be undefended—the Legisla-ture ultimately decided to substitute for the words ‘inform himof, his obligation to give: evidence on his own behalf’ the words‘inform him that he is entitled to give evidence on his ownbcha1; '…
TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
565
Apart from this proposal from the draftsman of the Bill tointroduce a very radical departure from the law relating tothe criminal procedure—which was dropped—th£re was anotherchange in the law which, though not as radical, is also ofimportance and was adopted by the Legislature ; that was theprovision now contained in each of the sections 168(2), 184(2)and 213(2), viz. that—
“ it shall be open to the prosecution to comment uponthe failure of the accused to give evidence
This was a departure from the old law which denied to theprosecution any right to comment on the failure of the accusedto give evidence.
In England it was not until the Criminal Evidence Act of1898 (c. 36) that an accused and his spouse were able in allcriminal cases to give evidence on oath ; during the previoussixty j'ears or so the accused had been allowed to make anunsworn statement about the facts; but this could not betested by cross-examination. Although a right to give evidenceunder oath was given to the accused in 1898, the right to make,instead, an unsworn statement was also expressly reserved ; butwhile giving a right to give evidence under oath the "prosecutionwas expressly prohibited from making any comment on thefailure of the accused to give evidence. However, the 1898 Actdid not prohibit the Judge from commenting on the failure ofthe accused to give evidence ; and in the Rhodes Case, (1899)1 Q.B. 77, Lord Russel, C.J. said : “ it was a question entirelyfor the discretion of the Judge whether to comment ; but anunjustified or excessive comment can be the subject of appeal.
Broadly, the position that prevailed in Sri Lanka was the sameas that which prevailed in England after the introduction of theCriminal Evidence Act of 1898.
The Lord Edmund Davies Committee among other thingsrecommended :
the express abolition of the right to make an unsworn
statement.•
that if the defence is calling the evidence of the accused
and others, the accused should be called first (unlessfor specified reasons the Court orders otherwise).
656TENNEKOON, C. «J. Lionel v. Republic of Sri Lanka
(iii> that if the close of the prosecution case the courtholds.that there is ‘ a case to answer’, the court shallbefor^any evidence is called for the defence informthe accused that fie will be called upon to give evidenceand also tell him in ordinary language what the effectof the provisions of the new law will be if when socalled upon he refuses to be sworn or to answer ques-tions ; the court shall then (if the court has not grantedpermission for other evidence to be called first) caVupon the accused to give evidence.
that if the accused on being called upon to give evidenceby the Court refuses to be sworn or to answer ques-tions, the prosecution may comment upon the refusalof the accused to give evidence.
tv) that the Court shall inform the accused in ordinarylanguage what the effect of the new law will be ifhe, when so called upon to give evidence, refuses tobe sworn or to answer questions.
that the Court or Jury in determining whether the
accused is guilty of the offences charged, may draw,from the refusal of the accused to give evidence whencalled upon to do so by the court, such inferences asappear proper ; and the refusal may, on the basis ofsuch inferences, be treated as or as capable of amount-ing to, corroboration of any evidence given against theaccused.
none of the foregoing was to render the accused com-
pellable to give evidence and he was not to be regardedas guilty of contempt of Court by reason of refusal*to give evidence.
As stated before, none of these recommendations have been•accepted and implemented in England.
TENNEKOON, C. J.— Lionel v. Republic of Sri Lanka
567
One question that arises is whether our legislature hasborrowed and incorporated any of the views of the Lord DaviesReport.•
Certainly in the Administration of Justice Law—
(i) there is no indication of any intention to abolish theright of the accused person to make an unswornstatement from the dock.
there is no provision in the Administration of Justice
Law which makes it incumbent on the accused to giveevidence first in the event of the accused proposingto adduce the evidence of others as well as of himself.It must be noted however that in such a situation ourCourts will insist on the accused being called firstexcept perhaps in extraordinary circumstances.
there is no provision in the Administration of Justice
Law which requires the judge at any stage to callupon the accused to give evidence. It only providesfor the judge if he is not directing the jury to returna verdict of not guilty under section 212 (2) “ to callupon the accused for his defence ” an expressionwhich cannot in any way be equated to “ call uponthe accused to give evidence ”.
as stated above there is no provision in the Adminis-
tration of Justice Law which gives any right to thejudge or makes r his duty to call upon the accusedto give evidence. It is important to take note of thisfact because in section 213(1) and 213(2) ourdraftsman has borrowed from the Lord Davies Reportlanguage appropriate to a refusal to take the Court’sdirection to give evidence, and latched them on tothe failure to exercise the right of giving evidence ;it is my firm conviction that one cannot from somephrases occuring in section 213(1) and (2) inferen-tially hold that when the Judge calls upon the accusedfor his defence there is a legal duty or obligation onthe accused to give evidence. That which the Legis-lature expressly rejected, as would appear fromwhat I have set out of the legislative histoiy of thebill, cannot be regarded as having been inadvertentlyand quite contrary to its intention enacted by theLegislature in the provisions of sections 168, 184 and213.
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
The Administration of Justice Law has brought in a
provision requiring the judge, if he calls upon theaccu^bd for his defence, before any evidence is calledby the accused,. “ to inform the accused that he isentitled to give evidence and tell him in ordinarylanguage what the effect in law will be if he doesnot give evidence.”
The Administration of Justice Law then goes on to
provide in section 213(2)
“213(2) if upon the Judge calling for the defence,the accused does not give evidence, it shall be opento the prosecution to comment upon the failure ofthe accused to give evidence and the jury, in deter-mining whether the accused is guilty of the offencecharged, may draw such inferences from such failureas appear proper.
To be noted here is that unlike in the Lord Davies Reportwhere comments could be made on and inference drawn froma refusal to follow a direction of Court to give evidence, theAdministestion of Justice Law only contemplates commentsbeing made upon and inferences being drawn from the failureof the accused to give evidence. The expression “ inferencesfrom such failure to give evidence ” used in this context insection 213(2) and in sections 138(2) and 168(3) does not carryany implication of inferences from a failure to discharge anobligation cast upon the accused by law.
The resulting position can be described then in the languageI used on a previous occasion when this court was called uponto consider the effect of section 213 of the Administration ofJustice Law. In the case of The Republic v. Gunawardena, S.C.Appeal 136/75 ; S.C. Minutes of 19.12.75 (78 N.L.R. 209) I hadoccasion to say :
“We th:nk it would be useful to make a few commentson section 213 of the Administration of Justice Law.Section 213(2) only alters the law as it stood before theenactment of the Administration of Justice Law by givinga right to the prosecution to comment upon the failure ofthe accused to give evidence and by making a positivedeclaration of what was always implied in our law, viz.,that the jury may draw such inferences as apnoar proper
TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
569
from the failure of the accused to give evidence. It has notaltered the law as to the situations in which ‘inferences mayproperly be drawn upon such failure. It »as not made itobligatory on the accused in every case, on being calledupon for his defence, to give evidence, if he wished to avoidbeing convicted. Failure to testify on the part of the accusedis not declared to be equivalent to an admission by theaccused of the case against him.”
I might add to this also that the fact of the accused not givingevidence when he is called upon for his defence does not amountto and cannot be treated as corroboration of the evidence givenagainst the accused. Further, failure on the part of the accusedto give evidence cannot be treated as an item of evidence againsthim. It cannot be treated as an evidential fact. Sparrow’s Case,(1973) 2 A-E.R. 129.
I have thought it fit to set down something of what theDirector of Public Prosecutions has submitted was the sourceof some of the phraseology contained in section 213 of theAdministration of Justice Law because it has helped meconsiderably in trying to ascertain to what extent the Adminis-tration of Justice Law has altered the procedural law in relationto criminal trials.
Hitherto 1 have set down the extent to which the law remainsunchanged from what it was prior to the enactment of theAdministration of Justice Law.
The facts and the submissions that have been made in thiscase make it necessary to look more closely at the positivechanges that have been brought about by the Administration ofJustice Law.
Section 213 (1) uses the expression “ if the Judge calls uponthe accused for his defence, the Judge shall before any evidenceis called by the accused inform him.” It was submitted bycounsel for the appellant that the underlined words indicatethat the Judge must first ascertain whether the defence is callingany evidence and that it is only if the defence proposes to callany evidence that the Judge would be obliged to inform theaccused of his right to give evidence etc. While admitting thepossibility of such a construction upon a purely grammaticalapproach I do not think the legislature intended such a result.For one thing these words do not occur in section 138 (1) and#the legislature could not have contemplated so great a difference
370TEN'NKKOON, C. J.—Lionel v. Republic of Sri Lanka
in procedure between trials of defended and undefended accused.For another I^think the expression ‘ before any evidence Iscalled by the accused ” is capable of being given a much simplersignification—that is that it is merely directed towards fixingthe precise stage at which the Judge is called upon to act undersection 213 (1), viz. immediately after he has called upon theaccused for his defence. This view is confirmed by the languageof section 133 (1), which in its pertinent parts read “at everytrial, if and when the court calls upon the accused for his
defence it shall inform him that he is entitled to give
evidence, etc.” I should also think that this duty of the Judge ofinforming the accused of his right to give evidence mustnecessarily be done as soon as he calls upon the accused for hisdefence, for it is now almost an invariable rule of practice thatin the exercise of its discretion under section 135 of thfc Evi-dence Ordinance, if the defence announces its intention to callthe accused and other witnesses, the court will insist on theaccused being called first. Finally the view contended for bycounsel seems to me illogical having regard to the fact that thecontent of what the Judge has to tell the accused is obviouslymeant to help the accused to decide wheher he at least shouldgive evidence.
The next question that arises is in regard to the words “ informhim that he is entitled to give evidence in his own defence andtell him in ordinary language what the effect in law would beif he does not give evidence.”
It is obvious that the duty of the Judge to inform “ the accused ”that he is entitled to give evidence must be addressed tv)the accused himself ; the expression * the accused ’ in some sub-sections can refer to the accused himself or if he is representedby an Attorney, to his Attorney ; here I have no doubt thereference* is to the accused and the accused alone.
The law requires the Judge to inform the accused that he isentitled to give evidence in his own defence. Obviously thelegislature could not have intended the Judge to inform the
TEXN'EKOON, C. J. — Lijnel v. Republic of Sri Lankj
571
accused of only this one right. What the legislature has intendedis that the existence of his right should be announced in thehearing of the accused and the jury > at the same time lest theaccused—particularly an undefended one—be misled into thebelief that that it is his only right, it would be necessary for theJudge at the same time to inform the accused of his other rights.In the instant case the trial Judge did so and I might reproducethat part of his instruction to the accused :
'• Court:I call upon each accused for his defence. You
have a right to enter this witness box and give evidence. Ifyou enter the witness box and give evidence, learnedCounsel for the State, Gentlemen of the Jury and I can putquestions to you. You also have a right to make a statementfrom the dock in which case no one can question you, but thatis subject to the infirmity that it is not tested by cross-examination. It is possible that such comment will be made.You can also wait without giving evidence from the witnessbox or making a statement from the dock because no onecan compel you to give evidence or make a statement. Butif you do not make a statement from the dock or giveevidence from the witness box it is possible for Counselfor the prosecution to comment on your failure to do so.But your failure to give evidence or make a statement fromthe dock does not mean that the case for the presecutionis true. Nor does it mean that you are guilty of the offence,nor does it mean that it corroborates the case for the prose-cution. But it is possible for the Gentlemen of the Jury totake your failure to give evidence or make a statement fromthe dock in considering the entire case. You can also callevidence on your behalf. Now ask the 1st accused whathe proposes to do.”
Three submissions were made in regard to the way in whichthe trial Judge acted under this section.
That the learned trial Judge was wrong in havingasked the accused himself “ what he (the accused) proposed
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
to do ”, when he was being defended by an Attorney. Adecision es to whether, having regard to the progressof the cafe, the accused should or should not giveevidence can give rise to moments of grave anxiety to theaccused and it seems contrary to principles of a fair trialthat he should at that moment be deprived of any assistancefrom his Attorney. From section 34(1) of the Administrationof Justice Law one can gather that the rights and dutiesof an Attorney-at-Law include those of assisting andadvising his client and of appearing pleading and acting incourt on his behalf. The main purpose of the provision insection 213(1), it seems to me, is to inform the jury and insection 168(2) and 184(1) to remind the Judge himself astrier of fact that there is nothing in the law which debarsor disentitles the accused himself from giving evidence,apart from calling other witnesses, and that the accused andthe jury should not be left under the impression that it isthe invariable practice or the done thing in all criminalcases for the accused not to give evidence whatever may bethe-CTEfriands of the particular case. There is nothing in thesection to suggest that when the accused is defended by anAttorney, the handling of the defence should suddenly betaken out of his hands and that the accused should give ananswer independently of his attorney.
At the same time it is necessary to remind defendingcounsel that the decision whether or not the accused is togive evidence must always be that of the accused himself,though assisted by his legal adviser. The fact that thedecision is announced by the Attorney can in no circums-tances be the basis of the submission that the decision wasthat of the Attorney and not that of the accused. It shouldbe borne in mind that if an accused does not give evidence,whether he is defended or undefended, it is in either case a“ failure of the accused to give evidence ” within the mean-ing of section 213.
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
A further submission made by counsel, for the appel-lant is to the following effect: —#
•
In the case of trials under the old CocTe of CriminalProcedure it was the general practice of defending counsel—and it is confirmed by counsel for the appellant whoseexperience in that field has been very extensive—that theaccused would in consultation with his counsel take thedecision whether or not to give evidence or to make anunsworn statement if a defence is called, long before theclose of the prosecution case. The present provision in theAdministration of Justice Law would seem to require—andI agree—that, if an application in that behalf were madeeither by the accused or by his attorney, the court shouldhave a short adjournment to enable the defence to givethought to and decide upon its course of action. In any eventany consultation between client and Attorney should not beenacted in front of and in the hearing of the Jury.
A further submission of counsel for the appellantrelates to that portion of section 213(1) which requires theJudge “ to tell the accused in ordinary language what theeffect in law will be if he does not give evidence”. Counselfor the appellant submits that this duty can only be dis-charged by the Judge regard being had to the requirementsand demands of the particular case before him ; it is sub-mitted that it was insufficient for the Judge merely to havetold the accused “ if you do not give evidence prosecutingcounsel may comment on your failure to give evidence andthat it is possible for the gentlemen of the jury to take inaccount your failure to give evidence or to make a state-ment from the dock in considering the entire case”. I amnot inclined to agree with this submission. What the Judgeis required to tell the jury at this stage is the effect in lawof the failure to give evidence. I think what the legislatureis here speaking of is the abstract legal effect independentlyof the facts of the particular case.
I do not think the learned trial Judge can be faulted forthe manner in which he discharged his duty undersection 213(1)—except in one regard to which I have alreadyreferred to and to which I shall return later.
No complaint has been made in this case in regard to anydirection by the learned trial Judge in his final summing-up tothe jury on the ground that he commented unfairly on thefailure of the appellant to give evidence or that he told them
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TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
of any unwarranted inferences that may be drawn from thatfact. It is, therefore, unnecessary to consider in detail the mean-ing and effect^of sub-section (2) of section 213.
However, I think there are some general comments that oughtto be made.
Firstly in regard to the right given to the prosecution tocomment on the failure of the accused to give evidence ; this isthe idea borrowed from the Lord Davies’ report. Our legisla-ture appears to have adopted the view that the prohibition ofcomment is wrong in principle and entirely illogical. To quotefrom the Lord Davies’ Report :
“Assuming that the point which might be made incommenting is valid, it must seem strange to the jury thatthe prosecution should not make it in their final speech ;and if the Judge then makes the point, he may seem like anextra prosecutor. Moreover, now that the final speech forthe defence always comes after that for the prosecution, thedefence will be in a position to make such reply as theycan to comment by the prosecution. A few suggestionshave been put to us that only the Judge should be able tocomment because the prosecution may not use enoughdisJCTOaon in doing so ; but we do not think that this is astrong enough argument, especially when both the defenceand the court will be able to put the matter in perspective ”.
Secondly, in regard to the Judge’s comments to the jury, Iwould like to reproduce and adopt part of what was said byLawton, L.J. in his judgement in Sparrow’s case, (1973) 2A. E. R. 129 at 135. This was a case where a prima facie case hadbeen made out against the appellant ; he gave no evidence ; thetrial Judge made certain comments on the failure of the appellantto give evidence which Lawton, L J. criticised as misdirections ;however in the course of the judgement he said :
“ In the judgement of this court, if the trial Judge hadnot commented in strong terms on the appellant’s absencefrom the witness box, he would have been failing in hisduty. The object of a summing-up is to help the jury andin our experience a jury is not helped by a colourless read-ing cut of the evidence as recorded by the Judge in hisnotebook. The Judge is more than a mere referee who takesno part in the trial save to intervene when a rule of proce-dure or evidence is broken. He and the jury try the casetogether and it is his duty to give them the benefit of hisknowledge of the law and to advise them in the light of his
TENNEKOON, C. J.—Lionel v. Republic of Sri Lanka
575
experience as to the significance of the evidence and whenan accused person elects not to give evidence^*in most casesbut not all, the judge should explain to the jury what theconsequence of his absence from the witness box are andif, in his discretion he thinks that he should do so morethan once, he may ; but he must keep in mind always hisduty to be fair
I would only add this ; that the duty to be fair is not one thatis owed to the defence only. Judges must bear in mind the needto ensure that justice is done both to the community and to theaccused while still acting within the limits determined by law.
I can now get back to what I have referred to earlier as anerror in the procedure adopted by the learned trial Judgein acting under section 213(1).
It seems to me that the present case is an illustration of thedanger of asking an accused person who is defended by anAttorney-at-law what course he, the accused, proposes toadopt. Decisions of this kind must be taken by the accused inconsultation with his Attorney and not in the presence of Judgeand jury, and the decision as to the course to be followed mustbe announced by the Attorney-at-law for the accused.
When the 1st accused in the present case announced hisintention to give evidence on his own behalf, it is unfortunatethat his Attorney-at-law, who presumably had had no previousconsultation with his client on this question was virtuallycompelled to announce without any reference to his client, thatin his view the 1st accused should not testify from the box.Indeed there was no opportunity for any consultation, or eventime enough for the Attorney-at -Law to give sufficient considera-tion to the question whether the accused should be calledinto the box. It seems to me that the Attomey-at-law, at onestage when he put certain suggestions to the witnesss Piyadasaand to the witness Jayasundera, was intending to raise certaindefences such as self defence, provocation, or sudden fight. Thesesuggestions, it in safe to assume, were based on instructionsthe Attorney-at-law had already received from his client.Having got no affirmative response from the prosecutionwitnesses which would have helped to put forward suchdefences in his submissions to the jury, counsel seems tg havemisjudged the situation and in the hope of obtaining an acquittalover-ruled his client’s desire to place his version of the factsbefore the jury. Maturer consideration might have led theAttorney-at-law to his client’s way of thinking. Thus there isin this case the possibility that the appellant was through no
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TENNEKOON, C. J.—Lionel ti. Republic of Sri Lanka
fault of his $vn, deprived of the opportunity of having thedefences of sdlf-defence, provocation, and sudden fight, ade-quately considered by thfe jury.
In regard to self-defence, it can safely be assumed thatwhatever evidence the appellant could have placed before thejury, could not have been of such a character as to entitle himto a complete acquittal on that ground, for if such material wereavailable I cannot belive that any counsel, or the accusedhimself, would have refrained from placing that material beforethe jury. One can therefore, proceed in this case on the basisthat if the appellant did testify he might have obtained a lesserverdict of attempted homicide on one or other of the grounds,namely, exceeding the right of private defence, grave andsudden provocation or sudden fight.
In these circumstances, I do not think the verdict of attemptedmurder which the jury returned should be allowed to stand.I also do not think this is a case where a retrial should beordered, .i. would rather give the appellant the benefit of themost advantageous verdict he could have got if he gaveevidence. I would accordingly quash the conviction for attemptedmurder and substitute therefor the verdict of attempted culpablehomicide. On this basis the sentence pronounced upon theappellant based on the verdict of attempted murder must alsobe quashed. I would substitute a sentence of five years’imprisonment.
Thamotheram, J.—I agree.
Sirimaxe, J.—I agreeRajaratnam, J.—I agree.
Sharvakanda, J.—I agree.
Conviction for attempted murderquashed. Verdict of attemptedculpable homicide substituted.
End of Volume 79—(1)