180SAMERAWICKRAME, J.—Jayakody v. Sub-Inspector of Police, Hettipola
1969Present: Samerawickrame, J.
J. A. D. E. K. JAYAKODY and another, Petitioners, andTHE SUB-INSPECTOR OP POLICE, HETTIPOLA,Respondent
S.C. 404-405/67—Application in Revision in M. C. KvUyapitiya, 31421
Evidence Ordinance—Section 15—Scope—Charge of criminal offence (abduction)—
Evidence of similar facts—Admissibility at stage of non-summary inquiry.
Section 15 of the Evidenco Ordinance reads as follows:—
“ When thero is a question whether an act was accidental or intentional,or done with a particular knowledge or intention, the fact that such act formedpart of a series of similar occurrences, in each of which the person doingthe act was concerned, is relevant. ”
Held, that where a person is charged with the offence of having abducteda girl in order that she might be forced or seduced to illicit intercourse, .evidenceof similar acts of abduction of other girls by the accused can be led by theprosecution at the stage of the non-summary inquiry if it is elicited in cross-examination of the girl that she was taken away by the accused by reasonof a mistake.
“ It appears to be the position that a specific line of defence need not beset up before evidence of Bimilar occurrences may be led. It is sufficient ifthat defence is open on the facts. ”
APPLICATION to revise an order made by the Magistrate’s Court,Kuliyapitiya, at a non-summary inquiry.
A. H. C. de Silva, Q.C., with Stanley Alles and Kumar Amarasehara,for the accused-petitioners.
Kenneth Seneviratne, Crown Counsel, for the complainant-respondent.
Cur. adv. vult.
September 28, 1969. Samebawickbame, J.—
This is an application made by way of revision for the review of anorder made by the learned magistrate in respect of the admission ofevidence in non-summary proceedings. Learned Crown Counsel, whilehe did not question the jurisdiction of this Court to review such an order,pointed out that it was open to the magistrate at the end of the non-summary inquiry to decide whether a case had been made out to placethe accused on trial; that the Attorney-General had to consider whetherproceedings should be had in a higher court and that the objection tothe admissibility of the evidence which is the subject matter of theorder of the learned magistrate could be raised at the trial and,if necessary, canvassed before three judges in the Court of CriminalAppeal. He submitted therefore that this Court should be slow to
SAMERA.WICKRAME, J.—Jayakody v. Sub-Inspector of Police, Hettipola161
exercise its jurisdiction in this matter. Learned Queen’s Counselappearing for the petitioner submitted that grave prejudice would becaused to his client if tliis evidence was admitted and that thereforethis Court should exercise its powers of revision to preclude a miscarriageof justice. I am not disposed to come to any decision in respect of matterswhich have to be determined by the learned magistrate at the end ofthe non-summary inquiry or by the Attorney-General at the time ofconsidering the question of preferring an indictment against the petitioner.In view however of the submission made by learned Counsel for thepetitioner that grave prejudice would be caused to him if this evidence iBpermitted to be led I have gone into this matter only to decide whetherthe petitioner can show that this order involves either illegality or somegrave irregularity which would result in a miscarriage of justice of sucha nature that this Court, should at this stage intervene by the exerciseof its powers of revision.
The charge against the petitioner is that of abducting one Nandawathiein order that she may be forced or seduced to illicit intercourse.The prosecution sought to lead the evidence of eight other young girlsto the effect that they were abducted in order that they may be forcedor seduced to illicit intercourse by the petitioner. Learned Queen’sCounsel appearing for the petitioner submitted that the evidence soughtto be led was, in the circumstances of this case, not admissible andthat, even if it was admissible, the prejudice that would be caused tothe petitioner was very grave and the probative value of the evidenceso slight that the evidence should not be admitted even though it wastechnically admissible. He further submitted that there was no proofof the ingredients of the offence.
The evidence of the girl Nandawathie is to the effect that on the 19thof March, 1966, she was at a bus halting place at Hettipola along withanother girl in order to take bus to Galkande. The accused who camein a car with another offered them a lift saying they were going towardsBowatte. They got into the rear seat of the car and it proceeded towardsGalkande. At Galkande junction her companion got down but whenshe was about to get down the door was shut and the car proceeded. ■ Shesays,- she raised cries and on seeing a car coming in the opposite direction,appealed to the occupant of that car one Chandra Nilame who was knownto her. The car driven by the accused reversed into a by-road andthe other car blocked it. She says that thereafter there was a fightbetween Chandra Nilame and the accused.
It appears that sometime after Nandawathie had made her statementto the police she had written a letter to them resiling somewhat from. her original position and had made a second statement. Under cross-examination she gave evidence in regard to that matter as follows :—
“I told the 1st accused that I was going to Galkande. My 2ndstatement was recorded by S.I. Silva. If S.I. Silva has recorded thatI have told the 1st accused that I was going to Maunawa I accept that
162SAMERAWICKRAME, J.—Jayakody v. Sub-Inspector of Police, Heltipola
as correct. Maunawa is about 6 miles away from the place wheremy sister got down from the car. I think that the 1st accused haddriven off the car after dropping my sister in order to drop me atMaunawa. I say that I shouted when I was taken because I havesuspected that I have been taken away and that is why I made my2nd statement to the police. I can’t say that the door of the carwas closed in order to take me away. At the time I got into thecar I told the 1st accused that I was going to Galkande. But onthe way the 1st accused asked me from where I was and I told himthat I am from Maunawa. I think that 1st accused may have thoughtthat I was going to Maunawa.”
Chandra Nilame too gave evidence and stated that when he was. going by car he heard cries of distress from the car in which Nandawathiewas travelling and that he blocked that car.
The learned magistrate states, in regard to Nandawathie, “ Whatevershe may have said in cross-examination about being mistaken about theintentions of the accused and having second thoughts about their conductand writing PI, I do not think I can be influenced by the impressioncreated in the mind of Nandawathie on second thoughts. The letterPI, which is signed by Nandawathie has been clearly written by someoneelse. There is nothing to indicate that it was anything but anafter-thought. ” The learned magistrate was of course correct in sayingthat the opinion of Nandawathie is irrelevant. A witness has to deposeto the facts to which he can speak but the ihference deducible from thefacts and the decision in regard to what the facts prove is a matter forthe Court. The learned magistrate further states :—“ Assuming thatthe eight girls whom the prosecution proposes to call as witnesses willgive the evidence that they were forcibly taken by the accused andsubjected to sexual intercourse, I hold that this evidence is admissibleunder section 15 of the Evidence Ordinance to show the state of mindof the accused when they took away the complainant Nandawathie ”.
The evidence at a trial should be prima facie limited to matters relatingto the subject matter of the charge. In Maxwell v. Director of PublicProsecutions,1 Lord Sankey stated—
“It is of the utmost importance for a fair trial that the evidenceshould be prima facie limited to matters related to the transactionwhich forms the subject matter of the indictment, and any departurefrom those matters should be strictly confined
It is therefore necessary to consider whether the admission of the evidenceis warranted by law. Evidence tending to show that the accused hadbeen guilty of criminal offences other than that on which there is acharge against him is inadmissible except in special cirsumstances wherethat evidence is relevant to some issue before the Court. The rule
> 1035 A. 0. 309 at 320.
SAMERAWICKRAME, J.—Jayalcady v. Sub-Inspector of Police, HeUipola103
relating to admissibility of evidence of similar facts has been laid downby Lord Herschell L.C. in Makin v. Attorney-General Jor New SouthWales,1 as follows :—■
“ It is undoubtedly not competent for the prosecution to adduceevidence tending to show that the accused has been guilty of criminalacts other than those covered by the indictment, for the purpose ofleading to the conclusion that the accused is a person likely fromhis criminal conduct or character to have committed the offence forw hich he is being tried. On the other hand, the mere fact that theevidence adduced tends to show the commission of other crimes doesnot render it inadmissible if it be relevant to an issue before the jury,and it may be so relevant if it bears upon the question whether theacts alleged to constitute the crime charged in the indictment weredesigned or accidental, or to rebut a defence u'hich would otherwisebe open to the accused.”
In George Joseph Smith,2 where the appellant had been charged withthe murder of Bessie Miinday, it was held that evidence had properlybeen admitted of the death of Alice Burnham and Margaret Lofty insimilar circumstances for the purpose of showing the design ofthe appellant. In Harris v. Director of Public Prosecutions,3 therule laid down in 'Makin’s case was approved though it was held thatthe evidence which was led in that case was not warranted. In thecase of D. D. W. Waidyasekera, 4 where the appellant bad been chargedwith causing the death of a woman by an act done with intent to causemiscarriage, the evidence of a nurse employed by him who stated thatduring the 10 months of ber service under the appellant there were 150to 175 cases in which the accused had caused miscarriage and that ineach of those cases the accused used the same instruments and resortedto the same procedure; was held to have been properly admitted. Theevidence of other occurrences must negative the inference of accidentor establish mens rea by showing system. Evidence of other occurrenceswhich merely tend to deepen suspicion does not go to prove guilt—vide Noor Mohamed v. The King. 6
Under our law there is statutory provision in s. 15 of the EvidenceOrdinance which is as follows :—
" When there is a .question whether an act was accidentalor intentional, or done with a particular knowledge or intention,the fact that such act formed part of a series of similar occurrences,in each of which the.person.doing the act was concerned, is relevant. ”
The evidence of the other eight girls which the prosecution proposesto lead would not be relevant to show that the accused was a personwhose disposition was such that he was likely to have abductedNandawathie .on this day. It would be relevant only in order to rebut
' 1894 A.C.57.'* 1952 A. C. 69S.
* 11 Criminal Appeal Reports 236.4 (1955) 57 N.LJR. 202.
* 1949 A. C. 182 at 192.
184SAMERAWICKRAME, J.—Jayakody v. Sub-Inspector of Police, Bettipola
the inference of mistake or accident. In cross-examination it has beenelicited from Nandawathie that in her view the accused may have takenher in the car onwards from Galkande in the belief that she desired toproceed towards Maunawa. In other words, that the accused tookNandawathie from Galkande onwards by reason of a mistake. Itappears to me that the evidence proposed to be led will be availableto rebut the possibility of mistake.
It appears to be the position that a specific line of defence need notbe set up before evidence of similar occurrences may be led. It is sufficientif that defence is open on the facts. In Thompson v. The King,1 LordSumner stated :—
“ No one doubts that it does not tend to prove a man guilty of aparticular crime to show that he is the kind of man who would commita crime, or that he is generally disposed to crime and even to a particularcrime ; but, sometimes for one reason sometimes for another, evidenceis admissible, notwithstanding that its general character is to showthat the accused had in him the makings of a criminal, for example,in proving guilty knowledge, or intent, or system, or in rebutting anappearance of innocence which, unexplained, the facts might wear.In cases of coining, uttering, procuring abortion, demanding bymenaces, false pretences, and sundry species of frauds such evidenceis constantly and properly admitted. Before an issue can be said tobe raised, which would permit the introduction of such evidence soobviously prejudicial to the accused, it must have been raised insubstance if not in so many words, and the issue so raised must beone to which the prejudicial evidence is relevant. The mere theorythat a plea of not guilty puts everything material in issue is not enoughfor this purpose. The prosecution cannot credit the accused withfancy defences in order to rebut them at the outset_with some damningpiece of prejudice.”
Commenting on this passage, Lord du Parcq, in Noor Mohamed v.The King (supra) at pages 191 and 192 said—
“ An accused person need set up no defence other than a generaldenial of the crime alleged. The plea of not guilty may be equivalentto saying ‘ let the prosecution prove its case, if it can,’ and havingsaid so much the accused may take refuge in silence. In such a case itmay appear (for instance) that the facts and circumstances of theparticular offence charged are consistent with innocent intention,whereas further evidence, which incidentally shows that the accusedhas committed one or more other offences, may tend to prove thatthey are consistent only with a guilty intent. The prosecution couldnot be said, in their Lordships’ opinion, to be ‘ crediting the accusedwith a fancy defence ’ if they sought to adduce such evidence.”
1 1918 A.O. 221 at 232.
S AHERAWICKRAME , J.—J'ayakody v. Sub-Inspector of Police, Hcltipola 186
In Waidyasekera (supra) Basnayake, A.C.J. at page 212 said—
“ It is sufficient to say that under our law too the prosecution mayadduce all proper evidence tending to prove the charge against theaccused, including evidence tending to show that the accused hasbeen guilty of criminal acts other than those covered by the indictmentwithout waiting for the accused to set up a specific defence callingfor rebuttal.”
As I have indicated earlier, the position that the petitioner acted on amistake has been indicated in the cross-examination of Nandawathie,so that the defence of mistake or accident has already been adumbrated.
I shpuld refer to the fact that there is another rule, not of law but ofjudicial conduct which may be applicable. It is a rule of judicial practice,flowing from the duty of the judge when trying a oharge of crime toset the essentials of justice above the technical rule if the strict applicationof the latter would operate unfairly against the accused, and to considerwhether the evidence of similar facts which it is proposed to adduce issufficiently substantial, having regard to the purpose to which it isprofessedly directed to make it desirable in the interests of justice thatit should be admitted. If it can, in the circumstances of the case, haveonly trifling weight, the judge would be right to exclude it—vide Harrisv. Director of Public Prosecutions (supra).
I am unable to say, on a consideration of matters as they are beforeme, that the essentials of justice require the exclusion of the evidencesought to be led by the prosecution. The evidence is relevant andmay even be decisive on a matter which the prosecution has to prove.The trial judge will be in a far better positioh to decide whether thisevidence should be excluded by reason of the operation of this rule ofpractice. He will have before him all the evidence. In fact it hasbeen said that this is a matter which rests entirely within the discretionof the trial judge.
Learned Counsel for t he petitioners submitted that there was noevidence to prove the ingredients of the offence. In particular, hesubmitted, that there was no evidence that any force or deceitful meanshad been used to induce Nandawathie to get into the car. He furthersubmitted that there was no evidence to show that she was being takenfor the purpose of being forced or seduced to illicit intercourse. AlthoughNandawathie may have got into the car voluntarily without the use offorce‘s it cannot be said that upon the evidence it is not a possible viewthat the taking of her from Galkande junction onwards was compulsorilyand without her volition. According to her, she desired to alight fromthe car at Galkande but she was prevented from doing so as the door ofthe car was shut and the car was driven off. Whether a girl who hasbeen abducted was so abducted for the purpose of forcing or seducingher to illicit intercourse is a matter to be inferred from all the evidencein the case. The fact that a young girl is abducted, together with thefact that there was no other ostensible reason for her being taken may
Murugtau v. Weerakoon
be sufficient for the inference to be drawn that she had been abductedfor the purpose of being compelled to sexual intercourse. I do notconsider it necessary for the purpose of this application that I shoulddecide, at this stage, whether there is prima facie evidence in regardto the proof of the ingredients of the offence. It is sufficient for me tostate that there is evidence upon which the learned magistrate has takenthat view and that it is not a view taken arbitrarily or withoutany foundation.
In the result I am of the view that the petitioner has failed todischarge the heavy burden that lay on him to show that, in thecircumstance of this case this Court was called upon to intervene by wayof revision at this stage. I wish to stress again that I have considered thematter solely from this point of view and that nothing I have said shouldbe construed as precluding the learned magistrate from coming to a vieweither way at the end of the non-summary proceedings as to whether acase has been made out warranting the petitioner being put on trial orthe Attorney-General in deciding whether an indictment should bepreferred and further proceedings taken.
The applications are refused.
J. A. D. E. K. JAYAKODY and another, Petitioners, and THE SUB- INSPECTOR OF POLI