Fernando v. Republic of Sri lanka (De Alwis, J.)??
v.The Republic of Sri Larika
COURT Of APPEAL.
HATWATTE, J., RODRIGO, J. AND L. Ft. DE ALIWS, J.
•J. A. 45/79—H. C. NECOMBO 222/73,
JULY 30, 31, 1980.
Penal Code, section 403—Causing miscarriage—Woman voluntarilyparticipating considered an accomplice—Rule regarding, accomplice’sevidence—Evidence Ordinance, sections 114 and 133—Corroboration—Need to explain meaning to Jury—Circumstantial -evidence—Failureto explain to Jury how it should be approached—Misdirection—Adminis-tration of Justice Law, No. 44 of 1973. section 70 (6)
A woman who is a voluntary participant in. the offence of. causingherself to miscarry comes within the definition of an accomplice and itis a rule of practice that is now virtually a rule of law that anaccomplice’s evidence must be corroborated by inde^cnJem evidence onmaterial particulars.
Corroboration of an accompL^-e-^ evidence must relate not only to
the identity of theout also to the commission of the crime itself.
Previous statements }>y an accomplice do not afford corroboration of
v3) Failure of a trial judge to direct the jury in regard to corroborationof an accomplice’s evidence is a serious misdirection that would vitiatethe conviction.
(4) Failure of a trial judge to explain to the jury how they shouldapproach circumstantial evidence is a misdirection which vitiates theconviction.
Cases referrd to
Queen v. Liyanage & others, (1965) 67 N.L.R. 193.
Qoddard w. Goddard, (1962) 4 Cr. A.R. 461.
Dharmadasa v. Queen, (1967) 72 N.L.R. 298.
Queen v. Jayasinghe, (1965) 69 N.L.R. 314.
APPEAL from a conviction in the High Court, Negombo.
Dr. Colvin R. de Silva, with Sarath Wijesinghe, tor the accused-*appellant,
Asoka de Z. Gunawardena, Senior State Counsel, for the Attorney-General.
Cur. adv. vult.
L. H. DE ALWIS, J.
The appellant is indicted on a charge of voluntarily causing oneJanet Peiris, a woman with child, to miscarry between 16thNovember and 11th December, 1977.
The appellant is* indicted on a charge of voluntarily ctusing onethe charge by a divided verdict of 5 to 2 of the Jury and wassentenced to 1 year’s rigorous imprisonment and to pay a fine ofRs. 1,000, in default to a term of 6 weeks, imprisonment.
Sri Lanka Law Reports
(1980) 2 S.L.R.
The appellant is an Ayurvedic physician. Janet Peiris is amarried women with two children. She said that at the timeof the alleged offence she found herself to be two month’spregnant. At the confinement of her last child she had beenwarned by her doctor that if she were to have another child shewould die in child birth. She had mentioned this to her husbandand he had said that when the time came he would somehow orother save her. However on 15.11.77 when her husband was awayfrom home she went to the appellant’s dispensary alone andtold him that she was pregnant and about the warning she hadbedn given. The appellant said that he would give her somemedicine and that his charges were Rs. 150. He took her to aroom and examined her. She then went on to say that heintroduced two Eramudu stalks dipped in some red medicinefrom a jug like PI into her vagina. She felt faintish and started toshiver but revived after being given a cup of coffee. She was alsogiven some capsules and tablets to be taken if she became worse.On that day she paid the appellant Rs. 50. After she wenthome she started to bleed and this continued for two weeks.Thereafter her bleeding increased profusely and she was broughtby car to the same dispensary by one Malini, a neighbour. Shewas in the appellant’s dispensary on that occasion for about twohours but there is no evidence as to what transpired there. Twodays later she developed tetanus and was taken to a privatedoctor and from there to the Government Hospital at Chilaw.There she was examined by the D.M.O. and treated for tetanus.
The medico-legal report of the doctor is produced markedP4. According to this report she was examined on 11.12.77 atabout 6 p.m. and had signs and symptoms of tetanus. Thedoctor was of the opinion that there had undoubtedly been aninterference with her pregnancy but could not throw any lighton the mode of that interference.
The other witnesses called for the prosecution were Maliniwho took Janet Peiris to the appellant’s dispensary on the secondoccasion, and Jenet’s husband who knew' nothing about thealleged incident except what Janet had told him.
Serious misdirections in the learned trial Judge’s summing-upWere pointed out by counsel for the appellant.
By virtue of the explanation to section 303 of the Penal Code-unoer which the appellant is charged, a woman whb causesherself to miscarry comes within the meaning of this section.In the present case Janet Peiris admittedly has been a voluntaryparticipant in this alleged offence and would come within the
Fernando v. Republic of Sri Lanka (Oe Alwis, J.)
definition of an accomplice. It is a rule of practice that is nowvirtually a rule of law that an accomplice’s evidence must becorroborated by independent evidence on material particulars.Queen v. Liyanage and others (1) at 212.
The learned trial Judge no doubt has cautioned the juryseveral times in his summing-up against accepting Janet'sevidence without careful scrutiny for the reason that the wholeprosecution case more or less rested on her evidence. But hehas failed to direct them that her evidence must be treated asthat of an accomplice and that it is tainted evidence which shouldbe corroborated in material particulars by independent evidence.As a matter of fact he was about to conclude his summing-upwithout any direction on this aspect of Janet’s evidence whenprosecuting state counsel drew his attention to sections 124illustration (b) and 133. But even then his emphasis was moreon section 133 and section 114 was left to be dealt with only inthe last paragraph of his summing-up. That was just a barerecital of the section with no attempt whasoever to explain tothe jury what corroboration means or to point out to them theevidence that could constitute corroboration.
Corroboration of an accomplice’s evidence must be byindependent evidence on material particulars. It must relate notonly to the identity of the accused but also to the commission ofthe crime itself. Previous statements by an accomplice do notafford corroboration of his evidence. In the present casecorroborative eevidence that the prosecution relied on consistedof a statement made by Janet herself to the police, which wasproduced marked P2 and of certain statements made by her toMalini and to her husband. Malini stated that Janet asked her totake her to Cyril Veda Mahattaya’s dispensary and that just asthey overshot the place she pointed out the dispensary. Her hus-band Sugath said that on his return home from his trip Janet toldhim that she had been to Cyril Veda Mahattaya’s dispensary totake some medicine for her pregnancy. The evidence of Janet andSugath comprise of statements made by Janet to them and doesnot constitute independent evidence of corroboration. Thelearned trial Judge has nowhere in his summing-up explained tothe jury what independent evidence is and the jury may wellhave acted, on the assumption that these items of evidence were•corroborative of Janet’s evidence.
82Sri Lanka Law Reports(1980) 2 S. L.R,
—w■ – – ~
In the case of Goddard v. Goddard (2) cited by T. S. Fernando,
A. C. J. in the case Dharmadasa v. Queen (3) at 300, Lord Parker
“ Equally, if you get a case as in many sexual cases, wherethere is a danger that the jury will treat as corroboratedsomething which is incapable of being corroboration, theremust be a duty on the judge to explain to the jury what isnot corroboration, as, for example, a complaint made bythe complainant. In the general run of cases, where thereis evidence capable of amounting to corroboration, the dutyof the judge must depend on the exact facts of the case,bearing in mind that he certainly would not be expected torefer to every piece of evidence which is capable of amountingto corroboration but, in general, in the judgment of thisCourt he should give a broad indication of the evidence, whichthe jury, if they accept it, may treat as corroboration.”
See also Queen v- Jayasinghe (4) at 325.
I am of opinion that the failure of the trial Judge to direct thejury in regard to corroboration of an accomplice’s evidence is aserious misdirection that vitiates the conviction.
As regards the statement. P2 made by Janet to the Police I amof the opinion that it should not have been admitted in evidencein view of section 70(6) of the Administration of JusticeLaw, No. 44 of 1973. The statement was not the first informationgiven to the Police. The first information evidently is theinformation given by the Chilaw hospital authorities to thePolice which set the investigation in motion. The admission ofP2 as corroborative evidence has gravely prejudiced theappellant and has occasioned a failure of justice.
The prosecution also relied on two items of circumstantialevidence to corroborate Janet’s evidence, but the learned HighCourt Judge has totally failed to explain to the jury how theyshould approach circumstantial evident*. This is a grave mis-direction that vitiates the conviction. One of the items referredto is that the appellant treated Janet on her second visit withouteven questioning her as to what was wrong or ascertaining thehistory of her illness indicating that she had been to hisdispensaJT before. The second related to the recovery of a cupcontaining some red substance which the Government Analystlater identified as mercury, commonly used for abortions. Thiscup was found by the police about five weeks after the date ofthe alleged offence and the possibility that the substance found
CAFernando v. Republic of Sri Lanka (De Alwis, J.)83
its way info the cup sometime after the alleged incident cannotbe ruled out. There is, besides, no evidence that it is the identicalcup used by the appellant on. the day in question.
It is evident from the short period of 20 minutes the jury tookover their deliberations that they could not have given, dueconsideration to the various aspects of the evidence and theirverdict cannot be allowed to stand.
No purpose is served in ordering a re-trial, since there -ishardly any corroboration of Janet’s evidence. Janet herself hasbeen contradicted on several matters and consequently cannotbe said to be an absolutely trustworthy witness.
X therefore set aside the conviction and sentence imposed on theappellant and acquit him,
RATWATTE, J.—1 agree.
RODRIGO, J.—I agree.
G, G. Ponnambalam, Jnr.Attomey-at-Law,
Fernando v.The Republic of Sri Lanka