032-NLR-NLR-V-54-H.-A.-FERNANDO-Appellant-and-THE-KING-Respondent.pdf
NAG ALING All S.P.J.—Fernando v. The King
151
[Court of Crtmtnal Arrbal]
Present : Nagalingam S.P.J. (President), Gratiaen J. and Swan J.H. A. FERNANDO, Appellant, and THE KING, RespondentAppeal No. 59 with Application No. 86 of 1951S. O. 12—M. G. Gampaha, 57,683
Evidence—Statement regarding character of accused—Elicited -inadvertently—Require-ment of fresh trial.
In the course of the trial of the accused on a charge of rape, one of theprosecution witnesses said in cross-examination that the accused was a“ murderer This evidence was elicited accidentally and not in answer toa question put deliberately with a view to placing before the Jury the ante-cedents of the accused. Application for a new trial was made by Crown Counselbut was refused by the trial Judge.
Held, that there should be a fresh trial, although no application for it hadbeen made in the trial Court by accused’s Counsel.
^^.PPEAL, with application, for leave to appeal, against a convictionin a trial before the Supreme Court.
A. W. W. Gunawardena, for the accused appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 26, 1951. Nagalingam S.P.J.—
The prisoner in this case was convicted of the offence of rape andwas sentenced to undergo a term of seven years’ rigorous imprisonment.He appealed against his conviction and sentence, and at the conclusionof the argument we made order setting aside the conviction and directinga fresh trial. We then indicated that we would give our reasons laterwhich we now proceed to do.
The point taken on appeal is that the prisoner has been seriouslyprejudiced in his defence as he has not had a fair trial by reason ofanimadversions having been cast upon his character by one of thewitnesses for the prosecution. The evidence as to the character of theappellant was not admitted as a result of a question put deliberatelywith a view to placing before the Jury the antecedents of the prisoner,but on the other hand it was by a pure mischance revealed to the Jury.
The mother of the young woman who was the victim of the offencestated in evidence that she saw the prisoner running away from herhouse towards his sister’s house and that he had been in his sister’shouse for about an hour. Counsel for the defence without the least •anticipation of the turn the answer might take to bis question askedthe witness, “ Why did you not go and question him (the prisoner) ? ”.The answer was, ** He was a murderer, I was afraid. How can I approach
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NAGAX.TNGAM 3.!P J—Fernando v. 2Vie King
a murderer ? Almost immediately thus answer was given, the Jurywould appear to have been asked to retire, and in the absence of theJury learned Crown Counsel called attention to this answer, obviouslywith a view to indicating that the answer was a reflection upon thecharacter of the prisoner and presumably thereby suggesting that itmay be proper and more satisfactory that the Jury should be dischargedand the prisoner directed to stand his trial before a fresh Jury. Wehave advisedly used the term “ presumably thereby suggesting ” forthe reason that the typescript does not disclose that there was a formalapplication made to the learned trial Judge asking him to considerwhether the Jury should not be discharged and the trial commencedbefore a new Jury. Learned Crown Counsel contented himself witha bare invitation to Court to recognize the existence of circumstancesfrom which a possible view for a retrial may be taken. Counsel for thedefence himself did not take objection to the impropriety of the answerof the witness nor did he associate himself with the submission madeby Counsel for the Crown. He would, however, appear to have beena passive spectator in regard to the problem presented by Crown Counselto the learned presiding Judge, possibly under the impression that whereCounsel for the Crown himself had made the application, no wordsfrom him could have the effect of reinforcing or adding weightage towhat had fallen from the lips of Crown Counsel in regard to such amatter.
In the manner, one might almost say the half-hearted manner, inwhich the problem was presented to the learned trial Judge, it is nota matter for surprise that the learned trial Judge thought that thetrial might very well proceed before the same Jury, as in his opinionthe word “ murderer ” used by the witness had reference to the evidencegiven by her that she had heard cries of murder emanating from thedirection of her house before she got up to it, and the learned Judgetherefore indicated that there was no need to transfer the case to anotherJury.
This discussion, it must also be borne in mind, took place away fromthe hearing of the Jury, so that the Jurors did not even have the benefitof the learned Judge’s view with regard to what he considered wasthe proper significance and appropriate effect to be attached to thatevidence, and indubitably the Jury, when they retired to the Juryroom at that stage, were left with the epithet “ murderer ” that hadbeen applied to the accused person yet ringing in their ears, for thatimpression was never sought to be removed thereafter by anythingsaid or done during the rest of the proceedings. In these circumstances,it is extremely difficult to say to what extent the Jury may have beeninfluenced in the view they reached in regard to the case taken as awhole or, to put it somewhat differently, it would be impossible to saywhether they would not have resolved against the prisoner any doubtsthey might have had in their minds in regard to the ease by reason of thereference to him as “ murderer”. It cannot be gainsaid that todescribe an accused person as a murderer is to give him the worstpossible character that one can imagine. One would not pause to considerwhether a man described as a murderer had in fact been found guilty
NAGAIiHSTGAM S.P.J.—Fernando v. The King
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or not of the offence of murder or even of a lesser charge, for it seemsto us that where a person is referred to as a murderer the picture thatis at once conveyed is that of a person who has killed a fellow being and,necessarily therefore, a person who would not hesitate to commit anyother crime. With such a picture before the Jury of the character ofthe accused person, it cannot, to put ~it at the lowest, be asserted withany degree of certainty that the prisoner may not have suffered prejudicein his trial, for the tendency of the human mind always is to fastenguilt more easily on a person of bad character than on one of a goodcharacter.
In view of the decisions in the cases of The King v. Kotalawala 1 andThe King v. Piloris Fernando 2 learned Grown Counsel rightly thoughtit unprofitable to contend that the proper course in these circumstanceswould not have been to have discharged the Jury at the stage at whichthis unfortunate piece of evidence was placed before them and to haveordered a fresh trial, but he did urge that Counsel for the prisoner nothaving made an application himself for a retrial, we should, followingthe dictum in the case of Wattam 3, not quash the conviction. He alsorelied upon the case of John Cutter 4 where, although it was shewn thata previous conviction of the prisoner had inadvertently come to theknowledge of some at least of the Jurors, the Court of Criminal Appealrefused to interfere on the ground that the prisoner’s Counsel had notavailed himself of the right of claiming a retrial during the proceedingsthat culminated in the conviction of the prisoner. In that case, it mustbe noticed, the facts were rather peculiar and exceptional. Not tillafter the Jury had delivered their verdict did it transpire that evidenceof bad character of the accused person had come to the knowledge ofsome of the Jurors by reason of a previous conviction of his havingbeen entered on a copy of the indictment which had been handed tothem. The prisoner’s Counsel at that stage was offered two alternatives,either to take the matter up in appeal or to have a retrial before a freshJury. He chose, after taking time for receiving instructions, the formercourse, and in those-circumstances the Court of Criminal Appeal heldthat the prisoner had forfeited his right to complain of the irregularity.It should be borne in mind in this connection that under the law prevailingin England the Court of Criminal Appeal there has not the right to ordera retrial, so that if the Court did interfere on the ground of irregularityof reception of evidence, the prisoner would then in effect have securedan acquittal, for a retrial could not have been ordered. That is a factorwhich, no doubt, would strongly weigh with the English Court of CriminalAppeal in holding that the right to complain is lost where applicationfor a retrial is not made in the course of trial. But under our law wehave the power to order a retrial, and it cannot be said we need givethe same amount of weight to such a circumstance here. Besides, it isnot without interest to note that in the case of William Stirland 5 theLord Chancellor, Viscount Simon, thought that even under the EnglishLaw the proposition was not so strict as set out in Wattam’s case6.
1 (,1941) 42 N. JO,. JR. 265.4(1944)30 C.A. R. 107.
3 (1946) 47 N. JL. R. 97.3(1944)30 C.A. R. 40.
3 (1941) 28 C. A. R. 80.6(1941)28 G.A. R. 80.
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Alles v. Krishnan
“ The object of British Law, whether civil or criminal ” said the LordChancellor, “ is to se6ure, if it is possible, that justice is done accordingto law, and if there is substantial reason for allowing a criminal appeal,the objection that the point now taken was not taken by Counselat the trial is not necessarily conclusive. We do not think that thefailure on the part of the prisoner’s Counsel to take the objection atthe hearing of the case, and more so in a serious case, should stand inthe way of our interfering with the conviction
As we have already remarked, the imputation of such a heinouscrime as that of murder to an accused person is such a serious reflectionon his character that we cannot but hold that the trial in those circum-stances must be regarded as having been prejudicial and unfair to theprisoner. We have, for these reasons, set aside the conviction andordered a fresh trial.
Fresh trial ordered.