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Present: Fisher C.J., Garvin and Lyall Grant JJ.(Crown Case Reserved.)
KING v. SILVA.1—P. C. Kalutara, 22,652.
Evidence—Statement by witness to Police Officer—Statement denied attrial—Proof of statement—Purpose to which the statement maybe put—Corroboration of witness—Evidence Ordinance, ss. 145 (1)and 155 (3).
A statement, which is made by a witness to a Police Officerand is afterwards denied by the witness at the trial, cannot beused as substantive evidence of the facts stated against theaccused.
Such a statement is only relevant for the purpose of impeachingthe credit of the witness.
ASE certified by the Solicitor-General under the provisionsof section 355 (3) of the Criminal Procedure Code. The
accused was charged before the Supreme Court Criminal Sessionsat Kalutara with ,the murder of a boy in his employment onAugust 27,1927. One Mohammadu made a statement on September19, 1927, to an Inspector of Police, who recorded his statementand took him before a Superintendent of Police, to whom a. similarstatement was made by Mohammadu. In the Police CourtMohammadu denied the truth of the allegations in the statement.At the trial before the Supreme Court the Police Inspector wascalled and in the course of his evidence read the statement recordedby him. Mohammadu was called after the Police Inspector anddenied the alleged statement. His statement to the Superin-tendent was read to him and he denied having made any pf thestatements recorded. The Superintendent was then called andhe produced the statement. The learned Judge directed the jurythat the statements made by Mohammadu were so contradictorythat they should not act on anything said by him unless it wascorroborated by other evidence. The jury found the accusedguilty of grievous hurt. Two questions were submitted to theSupreme Court—(I) whether the statements made by the witnessMohammadu to thft,Police were admissible in evidence, and? if sq,to what extent and lor trhat purpose; (2)‘ whether there wa& amisdirection by the learned Judge.
H. V. ‘Perera (with Sri Nissanka and A'Jiulatmudali), for accused,
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•L: 4l. D. de Silva, 'Acting DegUty Solicitor-General (withDeraniyagala, G.C), for Crown.
IT—3. H. 9487 (11/46) .
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November 7, 1928. Fisher C.J.—
This is a case submitted for our consideration under section 355>sub-section (3), of the Criminal Procedure Code.
The following are the material facts :—The accused was chargedwith the murder of a boy, alleged to have been in his employment,on August 27, 1927. One Mohammadu made a statement onSeptember 19, 1927, to an Inspector of Police, who recorded hisstatement and took him before a Superintendent of Police, towhom Mohammadu made a similar statement on September 20,1927. In the Police Court proceedings Mohammadu gavecontradictory evidence as to the making of the statement anddenied the truth of the material allegations in the statement.The Police Inspector was called at the trial, and, in the courseof his evidence, read the record of the statement made to himby Mohammadu. An objection taken to his doing so by thedefence was overruled. Mohammadu was called after the PoliceInspector had given evidence and stated to the Court that he knewnothing about the incident, and was cross-examined by CrownCounsel as an adverse witness. His statement to the Superin-tendent of Police was read to him and he denied having madeany of the statements recorded. An objection by Counsel for thedefence as to the admissibility of this statement was overruled.The Superintendent of Police was then called and he producedthe statement and stated that it was made without any coercionbeing used, without any reluctance, and that it was explainedby him to Mohammadu who put his mark to it.
The learned Judge directed the jury that the statements madeby Mohammadu were so contradictory that they should not acton anything said by him unless it was conoborated by otherevidence which they could accept. The jury found the accusedguilty of grevious hurt and they added a rider that Mohammaduhad given false evidence, and the learned Judge dealt with himunder section 440 of the Criminal Procedure Code.
Two questions were submitted for our decision, namely:—
Whether the statements made by the witness Mohammadu
to the Police were admissible in evidence, and, if so, towhat extent and for what purposes.
Whether the direction by the learned Judge, above referred to,
amounted to a misdirection.
As to (1), primarily, the only evidence oi witnesses called at atrial which the jury arc entitled to take into consideration is fcheevidence then given by them in the witness bo'x. This generalrule is, of course, subject to some qualifications. For instance,if in the course of giving evidence at the trial a statement whetherverbal or reduced into writing which. contains relevant facts
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previously made by a witness is specifically put to him as having 1928*been made by him, and he admits that ne made it and that whatj
he stated therein is true, the relevant facts in the statement may be
treated as if they had been deposed to in the ordinary way. Thisis not really an exception to the general rule, because in effectthe witness repeats what he had previously said.
In this case the statements in question were reduced intowriting, and the only qualification of the general rule which appliesto them is that provided for under section 145 (1) of the EvidenceOrdinance, 1895, which, as pointed out by Mr. R. F. Dias at page 275of his valuable treatise on that Ordinance, must be read withsection 155 (3). These enactments are as follows :—
145 (1) A witness may be cross-examined as to previousstatements made by him in writing or reduced intowriting and relevant to matters in question withoutsuch writing being shown to him, or being proved; butif it is intended to contradict him by the writing, hisattention must, before the writing can be proved, becalled to those parts of it which are to be used for thepurpose of contradicting him.
155 (3) The credit of a witness may be impeached by theadverse party, or with the consent of the Court by theparty who calls him, by proof of former statementsinconsistent with any part of his evidence which is liableto be contradicted.
It was in accordance with section 145 (1) that the statementmade by Mohammadu to the Superintendent of Police was putto him, and in accordance with section 155 (3) that the Superin-tendent was called to prove that Mohammadu in fact made this ♦statement. The statement to the Inspector of Police is notcovered by these enactments, nor is it covered by the provisionsof section 157, which enacts that—
!i In order to corroborate the testimony of a witness any formerstatement made by such witness, whether written orverbal, relating to the same fact at or about the timewhen the fact took place or before any authority legallycompetent to investigate the feet, may be proved.”
As regards this statement, in my opinion the objection to itsadmission should have been upheld. If it was intended to applysection 157 it was admitted prematurely; a witness cannot becorroborated in advance, and moreover the sequel showed that thestatement would not have been corroboration of his evidence.
This statement was therefore inadmissible under the circumstances.
As regards the statement to the Superintendent, it was admissibleonly for the purpose of impeaching the credit of the .witnessMohammadu and, in view of the fact that his evidence amounted
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1928. to a denial of all knowledge of the circumstances, it could notViajaaTc J strengthen the case for the prosecution. A statement such as this
so put in evidence is not substantive evidence of any of the
KSiba alleged facts stated in it against an accused person; it is merelyevidence of the unreliability of the person who denies havingmade it. That being so, the learned Judge’s direction to the jurythat they should not act upon Mohammadu’s statements unlessthey were corroborated by other evidence they could accept was amisdirection. That direction amounts to a direction that if thefacts stated in the statement were corroborated by reliable evidencethey could act upon the statements as substantive evidenceagainst the accused. They should have been directed that theywere not entitled to consider any of the contents of either of thesestatements as evidence against the accused.
From the fact that the jury expressed the opinion that theevidence of the witness Mohammadu given before them was falseit is clear that they did, in fact, take into consideration thestatements in question as evidence against the accused and thatthese statements served the purpose of making good somethingwhich Mohammadu had failed to depose to in the witness box.Once the jury so took these statements into consideration it isobvious that they must have had a very substantial effect on theirminds and that their verdict must have been based to a veryconsiderable extent on reliance on these statements, and counselfor the Crown stated that he was not in a position to press the viewthat there was sufficient evidence without the statements tosupport the conviction of the accused.
The conviction therefore must be quashed.
Gabvijj J.—I agree.
Lyail Geant J.—I agree.
KING v. SILVA