Babyaingho v. The Queen
[Court or Crimikal Appeal]
Present : Sirlmane, J. (President)* Samerawibicrame, I;and tie Kretser, I.
Hi Hi .BABYSINQHO, Appellant * and THE QUEEN j RespondentGi Ci A; 60 of 1970, with Application 113St O. 138/69—M.G. Ratnapura, 30680Bvidehee^Former statement of a witness made to another witness outside Court&Conflict between that statement and his evidence in Oourt^MvidenitiU valueof ihe former BdUmeht^Boidehce Ordinance, e. 157-..
■Where witness A who makes a statement in bis evidence ednoerhing a faotdenies having made to witnesses B and 0 outside Court; oortaih statementswhich are in eohfliot with his own evidence, the jury must be tdld that the. earlier statements made by A to B and 0 do not form A’^ substantive evidenceoh which they can act: The Statements made by A to B and O— if B and Oto whom they had been made are believed—would tend to show that A whohow denies them is unworthy of credit, but these Statements which be repudiatesin Ids evidence cahoot be substituted for his own evidenoe:
STRIMANE, J.—Babyaingho c. The Queen
4£t_^_PPEAL against a conviction at a trial before the Supreme Conrt.
A. C. de Zoysa, with Sarath Muttetuwegatna, M. MousooJ Deen and(assigned) B. Bodinagoda, for the accused-appellant.
P.Colin Thome, Senior Crown Counsel, with P. Tennekoon, CrownCounsel, for the Crown.
Cur. adv. mil.
November 22, 1970. Sibimane, J.—
By a divided verdict of the jury (five to two) the appellant was foundguilty of the attempted murder of one Heen Mahathmaya by shooting himwith a gun. The injured man had been hit by a pellet in the region ofhis right eye, but there was no definite evidence relating to the rangefrom which the shot had been fired.
A young woman named Ramany had stated that on hearing a gunshot, she looked in that direction and saw Heen Mahathmaya fallen andthe appellant standing close by with something in his hand which shethought was a gun. Though it would appear that she had beenpersuaded to say at one stage that it was a gun that she had seen with theappellant, yet she stated more than once, in the course of her evidencethat she could not be definite as to what the appellant had in his hand.
The injured man Heen Mahathmaya had stated quite categoricallythat he did not see the person who fired the shot which injured him.
The prosecution-apparently relied on statements alleged to have beenmade by Heen Mahathmaya to two withnesses who came on the sceneshortly after the shooting, and to the two doctors who examined him,that it was the appellant who fired the shot.
A statement made by a witness outside Court may always be used forthe purposes of contradicting his evidence. Under section 157 of theEvidence Ordinance, such a statement made at or about the time when anincident took place can be used, within the limits (now authoritativelydefined) in order to show consistency, and thus corroborate the witness’sevidence. The most common example ofthisisthe “First Information”on which investigations by the police were initiated.
But, once a witness denies having made the statements attributed tohim, as in this case, the jury must be told that these statements do notform substantive evidence on which they can act. Such statements—if the witnesses to whom they had been made are believed—would tendto show that the person who now denies them is unworthy of credit,.but those statements cannot be substituted for his evidence.
Lord Hewart, C.J. said in Rex v. White 1 (1922) 17 C.A.R. 60):—
It is one thing to say that, in view of an earlier statement, thewitness is not to be trusted : it is another thing to say that hispresent testimony is to be disbelieved and that his earlierstatement, which he now repudiates, is to be substituted for it.”
* (7023) 17 O. A. B. 00.
Piycutna v. Inspector of Police, Foreshore Police
This rule was followed by this Court in Quern v. Heihuhamy1 (67 N.L.R.265).
The learned Commissioner in directing the jury said :—
“ So that, gentlemen, you have the evidence of four people, shall I sayPodi Appuhamy, Jaya-sekera Appuhamy, and the two doctorswho say that the injured man said that Baby Singho shot.On the contrary you have the evidence of the injured manhimself who says he does not know who shot him.”
“ So that, even if you accept the evidence of the two doctors and thoseother witnesses I referred to, you must be satisfied beyond allreasonable doubt that the Baby Singho referred to in their evidencewas the Baby Singho who is here in the dock facing this seriouscharge."
The jury would have inferred from these directions that if they acceptedthe evidence of the doctors and the two witnesses that Heen Mahathmayatold them that it was Baby Singho who shot at him, then they couldact on those statements which Heen Mahathmaya now denies if they wereconvinced that it was the appellant to whom he referred as Baby Singho.
We are of the view that the verdict of the majority of the jury cannot besupported having regard to the evidence led in the case, and learnedCrown Counsel, rightly we think, did not seek to support it.
For these reasons we quashed the conviction and acquitted theappellant.
H. H. BABYSINGHO, Appellant, and THE QUEEN , Respondent