PULLE J.—Qeeria Appu v. The Queen
[Coubt of Criminal Appeal]
1955 Present: Gratlaen J. (President), Pulle J. and Weerasoorlya J.K. DON GEERIS APPTJ, Appellant, and, THE QUEEN, RespondentAppeal 13, with Application 19
S. G. 45—M. C. Polonnaruioa, 19,731
Trial hejare Supreme Court—Failure of prisoner to disclose his defence before trial—
Liability to be cross-examined on it—Summing-up—M indirection—Criminal
Procedure Code, a 160,
It is improper to cross-examine a prisoner in regard to liis failure to disclosehis defence before trial, in. the course of the statutory statement mmlii l>y himunder section 100 of the Criminal Procedure Code.
In a trial for murder, the prisoner gave evidonco stating that the offencewas in fact committed in his presence by one of the witnesses for the prosecution.In spite of protest by his Counsel questions were permitted by Court to be putin cross-examination conveying to the Jury that the defence raised by theprisoner was false by reason of the foot that in his statutory statement lie hadmerely said “ I am not guilty ” and had not stated that tho deceased was stubbedby the witness for the proseoution.
Held, that the cross-examination was improper and that tho trial Judge,Raving failed to uphold the objection against it, should have warned tho jurymost explicitly, in the summing-up, that the accused was well within his rightsin not elaborating his defence at the time he made tho statutory stutumont andthat he did not thereby put himself in peril of having his defence rejected.
/PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
A. B. Perera, with J. C. Thurairatnam, for the accused appellant.
A. C. AUes, Crown Counsel, for the Attorney-General.
' f.'ur. ado. vult.
March 14, 1955. HMtllk J.—
The prisoner, K. Don Geeria Appu, was found guilty by a verdict offive to two of having on the 13th July, 1954, committed murder bycausing the death of one H. T. Podiappuhamy and was sentenced todeath. One of the grounds urged against the conviction was that tliolearned trial Judge permitted inadmissible cpiostions to bo put. to thoprisoner during his cross-examination, in spito of objection raised byhis counsel, on the statement made by him to tho Magistrate boforocommitment under section 160 of the Criminal Procedure Code. I t wasfurther submitted that the Judge omitted to toll tho jury in his chargethat they should not draw any inference unfavourable to the prisoner onthat part of the cross-examination and that such omission amounted to18lvt.
1. N. B 46217-1,592 (6/65)
PULLE J.—Oeeris Appu v. The Queen
nuch a misdirection as to justify the conviction being sot aside. Atthe close of the argument wo quashed the conviction and sentenco amiordered a re-trial and announced that the reasons for tho decision wouldbe put down later in a written judgment.
The question arises as follows : The prosecution relied on tho evidenceof throe witnesses who stated that on the night of tho 13th July, inr»4,they saw the prisoner stabbing the deceased on the high road leadingto a village called Giritale ataspotashort distanco away from tho boutiquebelonging to the deceased. Ono of these witnesses was R. Charles Appu-hamy. His version of tho incident was that the deceased called at- hishouse at about 8-30 or 9 p.m. As they wero ongagod in conversationhe heard words of abuse being uttered in a loud tone. This apparentlywas a reference to a part of tho incident spoken to by tho other twowitnesses according to whom tho prisoner went up to the boutique armedwith a knife and uttered threats that he had come to murder tho de-ceased. The deceased on hearing the shouts left the company of CharlesAppuhamy and went towards his boutique, although Charles Appuhamytried to persuade him to stay back. Then Charles Appuhamy alsowent in the same direction and he saw the prisoner moving towardstho deceased and stabbing him. Tho prisoner then approached CharlesAppuhamy with the knife in hand but the latter ran away. The prisoneradmitted his presence at the scene of the stabbing but stated that hr;saw the deceased being stabbed by Charles Appuhamy. Shortly before,the prisoner was walking on the road on his way home after an unsuccess-ful attempt to meet the deceased in his boutique. Ho then heard a talk.It was Charles Appuhamy abusing the deceased in filthy language. Hohurried to tho spot and then he saw him stabbing the deceased. Thodeceased loaned on him and fell to the ground. The prisoner then ranaway. It was also part of tho defence that the prisoner and tho deceasedwere good friends and that, on the other hand, incidents had occurredcalculated to create a »tate of enmity between tho deceased and CharlesAppuhamy.
The part of tho cross-examination of the prisoner to which oxcoptionlias been taken is recorded as follows and it referred to tho prisoner'sstatutory statement, “ I am not guilty ”.
“ Q. You say you are innocent in this case 1
Q.You wore asked in the Magistrate’s Court whethoryou had anything to say in answer to tho charge 1
Mr. Pereira :I object to that question.
Q. This is the first time that you are coming outwith the story that Charles Appuhamy stabbedthe deceased 1
A. I told the Magistrate who came to the scono. Hotold me ….
PULLE J.—Oeeria Appu v. The Queen
Q.We do not want what the Magistrate told you.You filed a list of witnesses.
Mr. Pereira :This is not permitted at all. I can submit the
highest authority on the subject. When anaccused person exeroises a privilege that the lawallowB him the Crown has no right to commenton it.
Crown Counsel :
He has submitted two lists of witnesses whichare part and parcel of the record. The name ofthe Magistrate is not on either of them. I amentitled to comment on it, on the fact that heis trotting out this story for the first time inthis court.
The failure on the part of an accused to elaborateon his plea of not guilty cannot be the subjectmatter of comment, much less of interrogation. ”
No ruling was given on the objection. The trial Judge was merelycontent to observe that he would tell the jury that the Crown had toprove the guilt of the prisoner. The point that the prosecution wasapparently seeking to make was that inasmuch as the prisoner did nottell the Magistrate that he saw Charles Appuhamy stabbing the deceasedhis defence should be rejected as false and a verdict found on the basisthat the threo alleged eye witnesses called by the prosecution should bobelieved. The learned Judge omitted to advert to this topic inliis char go. In regard to the evidence given by the prisoner incross-examination all he said was,
“ Then he was cross-examined and those questions put to himin cross-oxamination must be still fresh in your memory. Thosequestions were put only last afternoon. The case itself has gone on fromThursday last week and that is why I marshalled before you the evidenceof some of the witnesses so that you might recall their evidence, but theevidence of tho accused is too fresh in your memory for me to quote whathe said in cross-examination. ”.
Comments made by Judges to juries on the failure of an accused personto disclose his defence at an early stage, either when cautioned by thePolice or in the course of a statutory statement to a committingMagistrate, have been the subject of many decisions of the Court of .Criminal Appeal in England. Among them are if. v. Naylor *, if. v.LtUleboy 2 and tho comparatively recent cases of if. v. Leckeya, if. v.Tune * and if. v. Qerrard 8. A local case is if. v. Non Robert 8 in which,among others, if. v. Naylor 1 and if. v. Littleboy a were considered. Al-though in thepresent case no comment of any kind was made in the
charge to the jury, the propriety and the effect of the questions put tothe prisoner regarding his statutory statement must be determined in thelight of the principles laid down in those cases.
1 23 Or. A. R. 177.* 29 Or. A. R. 162.
(1931) 2 K. B, 108.s (1948) 1 AU E. R. 205.
29 Cr. A. R. 128.* (1910) 42 N. L. R. 73.
PULLE J.—Oeerie Appu v. The Queen; .
In R. v. Naylor 1 in answer to the statutory question‘which is identicalin form with that in section 160 of the Criminal Procedure Code tho pri-soner stated, “ I don’t wish to say anything except that I am innocentCommenting on these words tho Recorder in his summing-up stated,
“ Now you would imagine a purely innocent young man accusodof house-breaking and having these words put to him ' Do you wish tosay anything ? ’—Surely if he is an innocent man one would think howould give some explanation of where he was, and what ho was doingat the particular time, and would make his defenco then and there. Butho says nothing. ”•
The Court of Criminal Appeal hold that theso comments were improperand amounted to a misdirection. Hewart, L. C. J., said,
“ When one looks at the words ol the formula which must bedeliberately framed, it is quite obvious that they were intended to conveyand do convey to the prisoner the belief that heisnot obliged to say any-thing unless lie desires to do so. Now if those words are really to beconstrued in this sense, that, having heard them, an accused personremains silent at his peril and may find it a strong point against him at histrial that he did not say anything after being told he was not obliged to. say anything, one can only think that this form of words is most un-fortunate and misleading. We think that these words mean what theysay and that an accused person is quite entitled to say : ‘ I do not wishto say anything except that I am innocent ’
Tho principle laid down in Naylor’s case1 was followed in It. v. Leckey-where the trial Judge repeatedly told the jury that they might drawan inference of guilt by reason of the silence of the prisoner cn twooccasions when questioned by Police officers. In delivering thejudgment of the Court of Criminal Appeal Caldecote, L. C. J., said,
“ We think this amounted to a misdirection, and it is proper groundon which the verdict, subject to one other question, should be quashed.If it were not so, it must be obvious that a caution may be indeed atrap instead of being a- means for finding out the truth in the interestsas much of innocent persons, as it is in the interests of justice againstguilty persons. An innocent person might well, either from excessivecaution or for some other reason, decline to say anything when chargedand cautioned, and if it were possible to hold that out to a jury as groundon which they might find a man guilty, it is obvious that innocent personsmight bo in great peril. ”.
In our opinion the questions put to the prisoner wero improperinasmuch as they were intended to convey to the jury that tho defonceraised by him was falso by reason of the fact that in his statutory state-1ment ho did not state that the deceased was stabbed by CharleS Appu-hamy. In theso circumstances it was the' duty of tire Judge to haveuphold the objection. Having failed to do so at that stage, he should
* 23 Cr. A. K. I
* 29 Cr. A. li. 12S.
Pemananda Thero v. Thomas Perera
certainly have warned the jury most explicitly that the prisoner waswell within his rights in having stated, “ I am not guilty ” and that hedid not thereby put himself in peril to nave his defence rejected. As noruling was given on the objection there was, indeed, a special duty caston the Judge to safeguard the defence against the wrong impressionwhich the jury must almost certainly have received during the cross-examination as to the prisoner not elaborating his defence at the time hemade the statutory statement. The omission to direct the jury on tholines indicated amounted to a misdirection entitling the prisoner to havethe conviction set aside.
Nothing that we have said is intended to qualify or restrict anylegitimate comment the prosecution may make to the jury on the statu-tory statement of an accused person. There is all the difference betweenasking a prisoner to explain why he did not outline his defence in hisstatutory statement and, in a proper case, like one in which the defenceat the trial is one of alibi, in submitting to the jury that if tho defenceof alibi had been raised earlier the prosecution would have had anopportunity of testing it. Vide R . v. Lillleboy 1 and R. v. Don Robert
For the reasons set out in this judgment we quashed the convictionand sentence and ordered that the prisoner be re-tried.
Fresh trial ordered.
K. DON GEERIS APPU , Appellant, and THE QUEEN , Respondent
PULLE J.—Qeeria Appu v. The Queen