007-NLR-NLR-V-46-KING-v.-KITCHILAN-et-al.pdf
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SOJSRTSJS J.—King c. Kilchilan.
1943
Present: SoertSZ J
KING v. KITCHIKAN el at.66—ftl. C. Matara, 43,107.
Criminal Procedure—Charge against, several accused for same offence—Evidencecalled by one accused—Applicableto all—Crotcn's right of reply—
Criminal Procedure .Code, ss. 237 (2) and 206 (2).
Where several accused are indicted for the same offence and one ofihem calls evidence,' which is generally applicable lo all, the Crow n hasthe right of reply only against the accused on whose behalf evidence is
ASE heard before Soertsz J. and a Jury at the 4th Western Circuit..
M. T. tie S. Arnerasekere, K.C. (with him George Sarnarawickreme), forfirst accused.
C. S. Barr Kuniarakulasivghe (with him Vernon TVijetunge), for secondaccused.
Sri Nissanka (with him ./. Femandopulle), for third accused.
Srt Nissanka (with him S. N. Rajah), for fourth accused.
Siri Per era (witii him P. S. W. Abeywar<lene for fifth accused.
E. H. T. Gunasekere, C.C. (with him ./. A. P. Cherubim, C.C.), for theCrown.
November 3, 1943. Soertsz J.—
The question has arisen once again in regard to the circumstancesin which the Crown is entitled to the right of reply to the case for thedefence. There is no difficulty in answering that question in a casein which a single accused is charged on an indictment; but in a casesuch as his where 5 accused are involved in the indictment the answeris not so easy in view of the phraseology of the sections of our CriminalProcedure Code dealing with this matter. In England the questionappears to- be well settled now. The latest edition of Archibold’s“ Pleading Evidence and Practice in Criminal Cases ” (1943) puts thematter thus at pages 18 and 182: —
‘ ‘ If two prisoners are indicted generally- for the same offence and one
calls witnesses it seems that Counsel for the prosecution is entitled to a
led.
c
1943.
SOEBTSZ J.—King t. Kit ch Han.
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general reply. But if the offences are separate and they might havebeen separately indicated, he can reply only on the case of the partywho has called witnesses.”
If this principle is applied to the present ease the Crown would appearto have a right of reply because all the prisoners here are generallyindicted for the same offence. Again Archibold comments on thestrength of several cases cited by him as follows: —
“ Where on an indictment against several prisoners one of themcalls evidence, which is applicable to the cases of all, the prosecutionhas a general right of reply, although the others called no witnesses.”According to this principle too the Crown would appear to have a right•of reply in this instance because it is quite clear that the evidence ofl)rs. Karunaratne and Sinnadurai to mention only those witnesses calledby the second accused, is applicable to the case of all the accused.Indeed in view of the defence set up by the second accused in his statementfrom the dock that evidence is more applicable to the cases of the otheraccused than to thnt of the second accused.
But what is to be decided by me in regard to the true view of thematter in the light of the provisions of our Criminal Procedure Codewithout resort to the English law has to be decided in the manner providedby section 6 of the Criminal Procedure Code. There are two sectionsof our Code relating to the question raised here. Section 237 (2) says—The prosecuting Counsel shall subject to the provisions of sub-sectiou 2 of section 296, be entitled to reply on any evidence givenby or on behalf of the accused ” and section 296 (2) enacts that “ whenat any trial the evidence for the defence consists only of the evidenceof the person or persons charged as the case may be. the prosecutionshall not have the right of reply.”
The effect of these sub-seetions read together appears to me to be quiteclearly that the only evidence tendered by the defence is the evidenceof the accused person or persons concerned and that there is no right ofreply. But in a case in which evidence ” is given on behalf of theaccused ”in a case inwhichseveral personsare concerned the resulting
position isambiguous.Thosesections do notsay or enact what is to be
understood by the words ” on behalf of the accused ” in a case wherethere are more than one accused. They do not say what the positionwould be if only one accused led evidence and the other refrained fromdoing so.It would beunfairto give the Crown the right of reply to the
defence ofthe accusedin such a case merelybecause for instance one of
the accused called witnesses to prove an alibi for himself. Such evidencewould not be evidence given on behalf of the other accused. But in myopinion the submission made by Crown Counsel on this occasion is very-impressive. He rightly says that the evidence of the witnesses calledby the second accused in this case is evidence led on behalf of all theaccused inasmuch as it is intended to benefit the case of each and everyone of them. I should have accepted that submission and ruled that-prosecuting Counsel has a right of reply in the circumstance but for theview put forward by defending Counsel that the prosecution’s substantial
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SOERTSZ J.—King v. Kitchilan.
right of reply can be impaired or even circumvented by appropriatestrategic methods. But in the practice obtaining in our Courts theposition has been different and Crown Counsel have as a rule beencontent with a reply to the case of the accused who actually calls witnessesinto the witness box regardless of the question whether their evidenceaccrues to the benefit of the other accused as well or not leaving the lastword to the Counsel who do not put witnesses into the witness box.That practice was upheld by my brother Hearne J. in the case of King v.Romanis Perera 1 a case similar to this in regard to the question raisedhere, and although I do not find myself, if I may say so most respect-' fully, able to endorse that view wholeheartedly, I think I ought to followit and content myself with expressing the hope that if in case the questionshould arise before the Court of Criminal Appeal we will have the benefitof an authoritative ruling on the point. I therefore rule that Counselfor the second accused shall address the Jury first and the Crown Counselshall reply to him and that the other Counsel shall address the Jurythereafter in due order.
1 40 N. C. 8. 4it.