H. N. GUNAWARDENE, Accused-Appellant and THE REPUBLIC OF SRILANKA

029-NLR-NLR-V-78-H.-N.-GUNAWARDENE-Accused-Appellant-and-THE-REPUBLIC-OF-SRILANKA.pdf


TENNEKOON, C.J.—Qunawardene v. The Republic of Sri Lanka
269
1975 Present: Tennekoon, C. J., Walgampaya, J., and
Rajaratnam, J.
H. N. GUNAWARDENE, Accused-Appellant andTHE REPUBLIC OF SRI LANKA
S. C. 136/75—H. C. Kandy No. 67/IA—M. C. Anuradhapura 50580
Administration of Justice Law—S. 213—Failure of the accused to giveevidence.
S. 213(2) of the Administration of Justice Law declares, "Ifupon the judge calling for the defence the accused does not giveevidence, it shall be open to the prosecution to comment upon thefailure of the accused to give evidence and the jury, indetermining whether the accused is guilty of the offence charged,may draw such inferences from such failure as appear proper. ”
S. 213 (3) states, “ Nothing in this section shall be taken torender the accused compellable to give evidence on his ownbehalf.”
Held: S. 213(2) only alters the law as it stood before theenactment of the Administration of Justice Law by giving a rightto the prosecution to comment upon the failure of the accused togive evidence and by making a positive declaration of whatwas always implied in our law, viz. that the jury may draw suchinferences as appear proper from the failure of the accused togive evidence. It has not altered the law as to the situations inwhich inferences may properly be drawn upon such failure. Ithas not made it obligatory on the accused in every case, on beingcalled upon for his defence, to give evidence, if he wished toavoid being convicted. Failure to testify on the part of accused isnot declared to be equivalent to an admission by the accused ofthe case against him
A. ppeal against a conviction at a trial before the High Court,Kandy.
Dr. Colvin R. de Silva with A. C. de Zoysa, S. Muttetuwe-gama, (Mrs.) Manouri Muttetuwegama, P. D. W. de Silva, S.Mahenthiran, and J. Vsuf for the accused-appellant.
Tivanka Wickremasinghe, Senior State Counsel, for theAttorney-General.
December 19th, 1975. Tennekoon, C. J-—
The appellant was indicted before the High Court of Anura-dhapura on the charge of having on or about the 15th of May,1973, at Galenbindunuwewa, committed the murder of one SomaPerera. The case was subsequently transferred to the HighCourt of Kandy, where he was tried before a Sinhala speakingjury. He was convicted by the unanimous verdict of the juryof the offence charged and sentenced to death on the 35th ofOctober, 1974.
A 24586 (1/77)
210TENNEKOON, C. J.—Qunawardene v. The Republic of Sri Lanka
The case presented against the appellant was one based oncircumstantial evidence. We do not think that, having regard tothe order which we propose to make in this case, we should setout or make any comments on the case so presented.
Counsel for the appellant drew our attention to a number ofmisdirections in the trial Judge’s charge which, though deliveredin English, went to the jury as translated by the court interpreter.It has been submitted to us that the trial Judge’s directions tothe jury on the subject of circumstantial evidence were inadequ-ate and in certain ways confusing and misleading. Our attentionwas drawn to the following passages in the summing-up, namely :
“ ©d^esf tad 2S@S>2D03 caS
£)£2S?2Z) g<£02D" 2D© §S}P28z3*di.<saf 0d^0 <55iC©eS2De&stafS isx6?iS *Sca3 §tsf &ts>di@csf8,§®q0 esoabd-©*
esitao&taf zS©§>2D0d. if tao5h6-&i e&izascd’ SoSca B&f&aO sSBcagqj®. <ss3©esf @©25525/ ^ *S©S)2D ts8<s&!£@£> e3as/8 qjg© eaQod-cS
£31*35(203si" @2333(50 ^2g@28c32S)0 S)c3zif 2D eg©025/ 2D®,d?*ffldl
03bC>)d-@ra£2l2S3©G32DP@2533 ^0 ©id^sadica 2S033 @S3@cnr 2Sd®«jd
®tsf 0CS 8gS)q0 @02D2Xf©2D3S5i(3©e32D£5325/8*9@92D03
2D©’ if ®0J’42D3©CSg*5/2S*35dl0d^*3dl £57100300<3©®2S^2D
gd©s/. *53©$ C38@0^®£ eaozs/S g5z.2D cacsao £)C3&> §0 if Scacf C®02S/0 £30*353 9025/ 2D g©025/*35® 2S@®2D©3. C3S@0®.®S £33*5/8
©8*5/ ®<?*s/ C3®«^*3f ej02jV) 9oa §*5/zshadi ©d^tadi^, 2S0id§
*ac5i£J «Sc03 *Sd«Sca*330 6>£82S/2D £S002D’ 253©*5/ 2Dl£53l. Sc30® £83C5§iitsfQ S03 *35®2s/@c/ *S5d-@raca© ®(g®ca ca*5© *53®S)2D©d
§8*5/ £Sqac>25/ *55ig ©8<* §25/2?*S5dL ®83©Ce/
0d^ ®e/g *S5g ©2Dd@0. §>8253 20<33®2DC£>2S/ t5?@®2D©3 025/2S*35c5l
0C3@C325/ 2S0ld^*33dica *So3D. 1973 ^o*53 : 44 ^d^S ca*s/*ScOOSq8@® ^3©^ ©2D@2S/ 213 02D 0C32S/ 2Sc3 C30@25/ §§233 ca©2§lSB^cst&tsf ®g>@s/ 2S(5@^J©25/0ca 8<§©q© easts/© @25>)re25/2S5a 2D®,easts/© @253a^®®2rj0 Sdl^®© 2S(53®2DC02530 00@®2S/2D
cg^@*5*s/0 gd025/*S5® *S1@®2D03-”
In English this would seem to mean the following : —
“ If you can come to a conclusion on the circumstantialevidence that an offence has been committed (and) thereis no evidence compatible with the guilt of the accused,there is a reasonable doubt about the guilt of the accused.The benefit of a reasonable doubt must be given to theaccused. However, if an inference could be drawn beyonda reasonable doubt that the accused is guilty beyond reason-able doubt he can be found guilty, if there is evidence incom-patible with his innocence. Further, when you considercircumstantial evidence you have to consider all the evidencetogether. You cannot decide whether the accused is guiltyor not by considering only a part of the circumstantial
TEN.VEKOOK, C.J.—Ounatcardene v. The Republic of Sri Lan'ru
an
evidence- All the evidence must be considered
together for you to arrive at a decision,
As I mentioned earlier, the
accused need not prove his offence (guilt). There is apresumption that he is completely innocent. Under Section213 of the Administration of Justice Law No. 44 of 1973, ifthe accused did not give evidence regarding his innocence*having regard to his failure to give evidence you can cometo a decision against him.”
Counsel for the appellant has submitted that this passagecontains, in the first place, a misdirection in that the Judge toldthe jury that if there is no evidence compatible with the guiltof the accused there is a reasonable doubt about the guilt of theaccused. We agree with Counsel, for when there is no evidencecompatible with the guilt of the accused it is a situation of therebeing no case whatever against the accused and not a questionof there being a reasonable doubt. However, the middle portionof the passage quoted from the charge puts the matter correctlyand we cannot see that the passage complained of could havemisled the jury.
It is further submitted that the learned trial Judge’s directionunder Section 213 of the Administration of Justice Law is totallyincorrect.
Section 213 reads as follows : —
“213.(1) : If the Judge calls upon the accused for hisdefence, the Judge shall, before any evidence is called by theaccused, inform him that he is entitled to give evidence inhis own defence and shall tell him in ordinary language whatthe effect in law will be if he does not give evidence.
If upon the Judge calling for the defence, the accuseddoes not give evidence, it shall be open to the prosecutionto comment upon the failure of the accused to give evidenceand the jury, in determining whether the accused is guiltyof the offence charged, may draw such inferences fromsuch failure as appear proper.
Nothing in this section shall be taken to render theaccused compellable to give evidence on his own behalf. ”
On reference to the original English version of the charge, itwould appear that what the Judge actually said was :
“ Now, as I said earlier, the accused need not prove hisinnocence. There is a presumption of innocence in hisfavour. But, under the Administration of Justice Law No.44 of 1973. Section 213 (2), you gentlemen of the jury can
212
TENNEKOON", C.J.—Gun'iwnrdene v. The Republic of Sri Lanka
draw such inference from such failure of the accused togive evidence as you think proper when you considerwhether the accused is guilty of the charge, or not. ”
What went to the jury, however, through the interpreter wascalculated to suggest that it is the law that if the accused doesnot give evidence regarding his innocence, the jury can come toa conclusion against the accused for not giving evidence.
In a case such as the present one, we think that this statementof the effect of Section 213(2) would have caused the jury tothink that under Section 213 of the Administration of JusticeLaw, the failure on the part of the accused person to give evidenceis sufficient in itself to justify a conclusion that the accused isguilty. This is not the effect of Section 213(2) and this iscertainly not what the Judge intended to say, judging from theEnglish version.
We think it would be useful to make a few comments onSection 213 of the Administration of Justice Law. Section 213 (2)only alters the law as it stood before the enactment of the Admi-nistration of Justice Law by giving a right to the prosecution tocomment upon the failure of the accused to give evidence andby making a positive declaration of what was always implied inour law, viz : that the jury may draw such inferences as appearproper from the failure of the accused to give evidence. It hasnot altered the law as to- the situations in which inferences mayproperly be drawn upon such failure. It has not made it obli-gatory on the accused in every case, on being called upon for hisdefence, to give evidence, if he wished to avoid being convicted.Failure to testify on the part of the accused is not declared to beequivalent to an admission by the accused of the case againsthim. In a case such as this, the interpreter’s rendering of whatthe trial Judge said could have seriously misled the jury.
We must not be taken as saying that on the evidence placedbefore the jury in this case the trial Judge would have beenwrong if he told the jury that from the failure of the accused togive evidence they may draw such inferences as appear proper.But while those were in substance the words he used, what wentto the jury in Sinhala was something quite different.
Counsel for the appellant has drawn our attention to anotherpassage in the charge which reads:
“ 3g,«E>0 sSxadi <m.E> <82553 £)e§D. Btsf zBz&diO @©z552S5o©taTiS§C j3®S>255©0 iicOeSca £55j,255it5f !9c60 2551sS>3®0."
This means :
“ Then let us think about the accused. The accused hashad an intention to kill the deceased woman. ”
TF.NNEKOON, C. J.—JaycUunga v. Rosaiinahamy
213
The learned Judge’s exact words in English were :
“ Then we come to the accused. Would the accused havehad any motive to do away with the accused ? ”
The Sinhala version, which is what went to the jury is a completemistranslation. The interpreter had earlier been using the word:
@€z?25>)2) ’ to translate ‘ intention ’ sometimes alternating it with
The words used by the interpreter would have left thejury with the impression that the Judge was giving them adirection to the effect that the accused had an intention to killthe deceased.
These two misdirections (for which the Judge himself cannotbe blamed) we consider, warrant our setting aside the convictionof the appellant and the sentence passed on him. Learned SeniorState Counsel did not ask for an application of the proviso toSection 350 (1) of the Administration of Justice Law. We thinkhe was right in not so doing ; we are, however, of the opinionthat there was material before the jury upon which the accusedmight reasonably have been convicted, but for the misdirectionsreferred to earlier. We would accordingly order a new trial.
Walgampaya, J.—
I agree.
Rajaratnam, J—
I agree.
A new trial ordered.