SIRIMAN'E, J.—Been Banda v. The Queen
[Court of Criminal Appeal]
Present: Sirlmane, J. (President), Samerawlckrame, J., and
H. M. HEEN BANDA, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 1 of 1969, with Application No. 2S. C. 118)68—M. C. Polonnarutva, 1930
Summing-up—Evidence Ordinance—Section 27—Scope—Non-direction.
Where part of a statement of an accused person is put in evidence undersection 27 of the Evidence Ordinance, it is the duty of the trial Judge toexplain to the Jury that such a statement iB only evidence of the fact that thoaccused knew where the article discovered could be found, and nothing more.
-A.PPEAL against a conviction at a trial before the Supreme Court.
F. Ekanayake (assigned), for the accused-appellant.
V. S. A. Pullenayegum, Senior Crown Counsel, with Priyantha Perera,Crown Counsel, for the Attorney-General.
Cur. adv. truU.
March 13, 1969. Sibimane, J.—
According to the case for the prosecution, the witness Perera, a gameranger, together with the deceased, one Razaak, and two other gamewatchers, were on patrol in the jungle at Polatuwela in the Polonnaruwadistrict on the night of 10.10.67. About 9.15 p.m. they noticed a torchbeing flashed at a distance of about a hundred yards, and advanced withinthirty to forty yards of that light, when it was' suddenly switched off.
SIRIMANE, J.—Heen Banda v. The Queen
Perera then flashed his own torch, and says that he saw a man who hadcovered his head with a cloth pointing a gun towards them. He (Perera)immediately switched off his torch, when a shot rang out which injuredthe deceased and caused his death.
Razaak gave somewhat similar evidence, and both of them purportedto have identified the appellant as the man with the gun, though theyadmitted that they had only a glimpse of him.
In their statements to the police made next day, neither of them hadmentioned the name of the appellant, or that they had known or seen theassailant before that date. It was established in cross-examination thatRazaak had seen the appellant several times before this, and knew thevillage in which the appellant lived. The witness Perera had, in thecourse of an inquiry held earlier into the alleged shooting of an elephant,questioned the appellant in his office. The defence marked as D 3, a partof a statement made by Perera to the Magistrate where he had said,“ I had not seen the person who fired before that day ”.
It could be seen, therefore, that the evidence of identification was,to say the least, unreliable.
The prosecution also led evidence to show that in the course of theirinvestigations the police found a gun PI in the hollow of a tree. Theowner of this gun was unknown. They also led in evidence part of astatement made by the appellant to the police where he is alleged to havestated, “ I can point out the tree in which I placed the empty cartridge ”in consequence of which the police found the empty cartridge P2. TheGovernment Analyst expressed the opinion that P2 could have been firedfrom the gun PI. –
In The Queen v. Krishna Pillai1 (S. C. 19/68—M. C. Mallakam 2677)H. N. G. Fernando, C. J. pointed out the dangers inherent in a statementof this nature, admitted under section 27 of the Evidence Ordinance.Unless cautioned, juries are prone to attach undue importance to suchstatements, and are too ready to infer that the person on whose statementsome fact was discovered, had also in that statement confessed to thecommission of the crime. It was pointed out in that case that the trialJudge should clearly warn the jury that the law prohibits such an inference.
In his summing up, the learned Commissioner referred to the fact that acartridge was found on the appellant’s statement,—but he said nothingmore.
The prejudice caused to the appellant as a result of this non-directionbecame apparent when the jury returned after deliberating for nineteenminutes. When asked whether they were agreed upon their verdict, theForeman wanted to know whether the single cartridge traced was foundon a statement made to the police by the accused. The learnedCommissioner answered the question in the affirmative. Once again he
1 (1968) 74 N. L. B. 438.
de Silva v. Reddiyar
failed to explain to the jury that the finding of the cartridge had verylittle, if any, evidentiary value. In a space of two minutes after this,the jury returned a verdict against the appellant on the capital charge.
It is fairly clear that the jury must have been in doubt in regard to thedirect evidence of identification referred to earlier, and that it was thefinding of the cartridge on a statement made by the appellant that tippedthe scales against him.
When part of a statement of an accused person is put in evidenceunder section 27 of the Evidence Ordinance as was done in this case, itis the duty of the trial Judge to explain to the jury that such a statementis only evidence of the fact that the accused knew where the articlediscovered could be found, and nothing more.
The failure to explain to the jury the inference that they may properlydraw from the discovery of the cartridge, was a non-direction, which,in our view, amounts to a mis-direction. Had the jury been properlydirected on this point, it is impossible to say that they would have broughtin a verdict against the appellant.
Having regard to the nature of the other evidence in the case, we didnot think it was fair to place the appellant in jeopardy a second time.We, therefore, quashed the conviction and sentence and acquitted theappellant.
H. M. HEEN BANDA, Appellant, and THE QUEEN, Respondent