083-NLR-NLR-V-64-G.-R.-DANIEL-APPUHAMY-Appellant-and-THE-QUEEN-Respondent.pdf
THE LORD CHANCELLOR.—Daniel Appuhctfny v. The Queen* -481
[In the Privy Council] •„
1962 Present: The Lord Chancellor, Lord Morton of Henryton,
Lord Evershed, Lord Guest, and Lord Pearce
G. R. DANIEL APPUHAMY, Appellant, and THE QUEEN,
Respondent
Privy Council Ajypeal No. 12 of 1961
S. C. 19—M. C. KegaUe, 22,585
Criminal Procedure Code—Section 440 (1)—Summary punishment of a witness forperjury in open court—Procedure that should he followed in a trial before SupremeCourt—-Duty of Court to inform witness of the gist of the accusation against him.
Under section 440 (1) of the Criminal Procoduro Code it is for the Court, andnot for the jury, to decide whether false evidenco has been given by a witness,and if in the Court’s opinion the witness has given false evidonco, thon theSuprome Court has powor to sentence summarily “ as for a contempt of thoCourt”.
A rider brought by the jury to tho effect that the witness should bo doalf withfor givirg false evidence is not equivalent to a verdict of guilty to a charge ofperjury..>
It is not necessary when proceeding under section 440 (1) for the accusation ofgiving false evidence to bo stated with the particularity required in a count ofan indictment. If the Court is of the opinion that the whole of a witness’sevidence was false, it may bo sufficient just to say that. But when it is notsuggested that the whole of a witness’s evidence is false, it is essential that thewitness be left in no doubt as to which parts are alleged to be false. Tne Courtshould, before sentencing a witness, give the witness an opportunity of explana-tion and possibly of correcting a misapprehension as to what had been in factsaid or meant.
Appeal, by special leave, against an order of a Commissioner ofAssize summarily sentencing a witness to three months’ rigorous imprison-ment for liaving given false evidence.
i
F. N. Oratiaen, Q.C. with Dick Taverne, for the witness-appellant.
John A. Baker, with Annesley Perera, for the Crown.
Cur. adv. wit.
December 13, 1962. [Delivered by The Lord Chancellor]—:
The appellant Gamalath Ralalage Daniel Appuhamy was a witness forthe prosecution at the trial of eight persons at the Kandy Assizes of theSupreme Court of Ceylon in April 1960. At the end of the trial theCommissioner of Assize summarily sentenced the appellant to threemonths’ rigorous imprisonment for having given false evidence.
21—LXIV
2—R 8305—1,8831(3/63)
482
THE LORD CHANCELLOR—Daniel Appuhamy v. The Queen
Power to pass such a sentence is given by s. 440 (1) of the CriminalProcedure Code of Ceylon which provides that:—
“ If any person giving evidence on any subject in open court in anyjudicial proceeding under this Code gives, in the opinion of the, courtbefore which the judicial proceeding is held, false evidence within themeaning of section 18S of the Penal Code it shall be lawful for the. court, if such court be the Supreme Court, summarily to sentence suchwitness as for a contempt of the court to imprisonment either simpleor rigorous for any period not exceeding three months”
The relevant part of s. 1SS of the Penal Code reads as follows :—
“ Whoever, being legally bound by an oath or affirmation, or by anyexpress provision of laAv to state the truth, or being bound by law to'make a declaration upon any subject, makes any statement which isfalse, and which he either knows or believes to be false, or does notbelieve to be true, is said to give ‘ false evidence
The Charges against the eight accused were in respect of the looting of aboutique run by a Tamil, Mooka Pillai, on the 29tli May 1958 during theracial riots that occurred at that time. Mooka Pillai gave evidence thatthe appellant, the village headman of a neighbouring village, came to hisboutique in the evening, of the 29th May 1958 and told him that peoplewere planning to loot it that night. A lorry was sent for and loaded withgoods from the boutique with the intention of taking them to an emptyboutique close to the appellant’s house. While the lorry was. beingloaded or just after the loading was finished, three men came into theboutique. One of them, the accused Seda, said that he had brought about200 people to loot the shop and in the presence of the appellant andwithout any attempt by him to protect them, Seda struck both MookaPillai and his wife who then ran out of the back of the boutique and tookrefuge in a neighbour’s house.
The appellant stated that he had remained in the boutique until afterthe raid was over and that he had then driven the lorry, which had notbeen taken away by the looters, to the police station a short distanceaway and had then reported the matter to the police. He had made noeffort to inform the police before the raid took place or to secure theirassistance during the course of it although there was a post office with atelephone close by. His role throughout the raid had been that of aSpectator. His evidence differed from that of Mooka Pillai in a numberof particulars. He said that he had come to the boutique with a Tamil,Perumal Pillai, on foot while Mooka Pillai said that he had come by carand that Perumal Pillai had not come at all. In his notebook he hadrecorded that the information about the looting had been given to himby Perumal Pillai but he had told- the police when he did report' thematter that he had received the information from persons unknown. Hesaid that Perumal Pillai had given him. the information when he was athis desk in his house, whereas the note in his notebook stated that it was
THE LORD CHANCELLOR—Daniel Appuhamy v. The Queen
483
given to him at Perumal Pillai’s boutique. He did not get PerumalPillai’s signature to the report as it was his duty to do.
The appellant was treated as an accomplice by the prosecution and itwas suggested to him on behalf of the defence that the looting wasplanned by him and carried out by him.
The learned Commissioner in the course of his summing up, after re-minding the jury of the evidence given by the appellant, invited the juryto consider whether or not it was their duty to return a rider indicatingwhat they felt about the evidence of the appellant. “ A headman ” hesaid “ is a person appointed to protect the public, to serve the public, es-pecially at a time of stress like the emergency ; and if a headman conductshimself in a way that jeopardises the safety of the public, surely you,gentlemen, who sit in judgment in the highest tribunal of the land, willconsider whether it is not your duty to indicate what you tliink abouthis conduct, whatever your decision with regard to the accused may be.”
Although this might have been taken as an invitation to condemn theappellant for his failure to report the threatened raid to the police and forhis failure to take any action to protect Mooka Pillai and his wife, itwould seem that it was not so understood by the jury. After returningtheir verdicts in relation to the accused, the Foreman said “ The headmanmay be dealt with for giving false evidence ”.
After sentencing the seven accused who were found guilty, the Com-missioner said to the accused :
“ The jury have brought a rider against you that you should be dealt
with for giving false evidence. Have you any cause to show why you
should not be dealt with V*
Counsel on behalf of the appellant then asked the Commissioner to dealwith the matter the next day whereupon the Commissioner said that hewas dealing with the appellant summarily. Counsel then urged somematters in mitigation. The learned Commissioner again called upon theappellant, saying :
“ Have you any cause to show ?”
The appellant begged his Lordship’s pardon. The Commissioner thensaid his offence was a very serious one and sentenced him to three months’rigorous imprisonment.
The statements made by the learned Commissioner to the appellanttend to support the view that the Commissioner regarded the finding ofthe jury in relation to the appellant as equivalent to a verdict of guilty toa cliarge of perjury. The appellant was not told that in the opinion ofthe Court he had given false evidence nor was any indication given tohim of the matters in respect of which he was alleged to have given falseevidence. He was simply told that the jury had brought a rider againsthim that he should be dealt with for' giving false evidence although thejury’s rider was that he might be dealt with for that. He was not askedwhether he admitted or denied giving false evidence but only to show
484
THIS LORD CHANCELLOR—Daniel Appuhamy v. The Queen
cause why he should not he dealt with, a procedure similar to thatfollowed in the criminal courts of England when after a conviction offelony the prisoner is called upon to show cause why sentence should nothe passed upon him.
The course taken by the learned Commissioner in his summing up alsotends to support the view that he regarded the rider of the jury as equiva-lent to a verdict.of guilty. After directing the jury very properly as tothe way they should regard the evidence of the appellant when consideringthe guilt or innocence of the accused, he read to the jury a note of theevidence given hy the appellant as to the source of the information he hadreceived as to the plot to loot and as to the place where he received it .and he reminded the jury that the appellant had said that he came toHooka Pillai’s boutique on foot when Mooka Pillai said he came hy car.
Having read this passage from the shorthand note and having re?minded the jury about the car, the Commissioner invited the jury “ toreturn a rider indicating what ” they felt “ about the evidence of thisheadman
S. 440 (1) of the Criminal Procedure Code does not require a finding by ajury as a condition precedent to the exercise by the Supreme Court ofthe summary power to sentence for. giving false evidence.
Their Lordships are reluctant to conclude that the learned Com-. missioner decided in the course of the trial of the eight accused to add tothat trial, the trial of the appellant, a witness for the prosecution, on acharge of perjury. They do not find it necessary to reach a conclusion onthis. If the Commissioner did so decide, appellant was tried forperjury, without any charge being formulated against him and withoutany opportunity being given to him to put forward any defence he mighthave.
In Subramaniam v. The Queen x, Lord Oaksey delivering the judgmentof their Lordships said that in their opinion it was never intended that inthe exercise of the power under s. 440 (1) in the course of a criminal trial, asubsidiary criminal investigation should be set on foot nqt against theprisoner charged but against the witnesses in the case and that if such aninvestigation is necessary it can and should be set on foot under s. 440 (4).
It may be, as Counsel for the Crown submitted, that the learnedCommissioner merely sought to be helped by the jury on a question offact. Even so the course taken by the learned Commissioner would notappear to their Lordships to be justified. Under s. 440 (1) of the CriminalProcedure Code it was for the Court to decide whether false evidence hadbeen given, and if in the Court’s opinion it has, then the Supreme Courthas power to sentence summarily “ as for a contempt of the Court ”.
It was clearly established in Re PoUard 2, on a reference to the JudicialCommittee of the Privy Council, that no person should be punished forcontempt of court, which is a criminal offence, unless the specific offencecharged against him be distinctly stated and an opportunity of answering
it given to him.
1 {1956) 1 W. L. B. 456.
8 (1SG8) 5 Moore N. S. Ill : 16 E. R. 457.
THE LORD CHANCELLOR—Daniel Appuhamy v. The Queen
485
The same rule applies in relation to summary punishment for givingfalse evidence, see Chang Hang Kiu v. Piggott1. In that case theirLordships held that the gist of the accusation against the appellantsought in the circumstances of the case to have been sufficiently clear tothe accused from the language employed by the learned Chief Justice.The Chief Justice had said that the whole evidence given by the appellantsconvinced him of a conspiracy and all that they had said material to oneisstie was a tissue of deliberate falsehoods. A little later in their judgmentthey expressed the opinion that the language used by the learned ChiefJustice was quite sufficiently specific.to make the appellants aware ofthe pith of the charge against them. But their Lordships advised thatthe appeal should be allowed on the ground that the Chief Justice should,before sentencing them, have given the accused an opportunity of givingreasons against summary measures being taken, “ an opportunity ofexplanation and possibly the correction of misapprehension as to whathad been in fact said or meant.”
It is not in their Lordships’ opinion necessary when proceeding unders.440 (1) for the accusation of giving false evidence to be stated Avith theparticularity required in a count of an indictment. If the Court is of theopinion that the Avhole of a witness’s evidence Avas false, it may besufficient as in the case of Chang Hang Kiu v. Piggott (supra) just to saythat. But when it is not suggested that the whole of a Avitness’s evidenceis false, it is essential that the Avitness should be left in no doubt as towhich parts are alleged to be false. Unless he is so informed, he isdeprived of the opportunity of explanation and possibly of correcting amisapprehension as to Avhat had been in fact said or meant.
It cannot, in the opinion of their Lordships, be said that the observa-tions made by the learned Commissioner to the jury in the course of hissumming up, Avere sufficient if the appellant Avas present and heard whatwas said—and there is no evidence that he Avas—to leave him in nodoubt as to the matters on Avhich, in the opinion of the Court, he hadgiven false evidence.
It Avas not suggested that the whole of the appellant’s CAddence Avasfalse. It clearly was not ; and no doubt the prosecution sought to attachsome importance to his eAidcnce of identification.
In their Lordships’ opinion the appellant Avas not informed by theCommissioner of the gist or substance of the accusation against him andaccordingly was given no opportunity of dealing Avith it.
For these reasons their Lordships have humbly advised Her Majestythat this appeal be allowed and the sentence passed upon the appellant• quashed.
Appeal allowed.
n. 8395 (3/63)
1 (1909) A. C. 312 (J. C.).