054-NLR-NLR-V-53-KIRIWANTHIE-et-al.-Appellants-and-THE-KING-Respondent.pdf
Ktriwanthie v. The King
[Court of Criminal Appeal]
1051 Present: Gratiaen J. (President), GunasekaraJ. and de Silva J.
KIRIWANTHIE et al., Appellants, and THE KING, RespondentAppeal No. 44 op 1951 with Applications Nos. 59-60S. C. 3—M. C. Nuwara Eliya, 4,874
Criminal procedure—Speech to jury—Credit of witness attacked improperly—Summing-up—Right of presiding Judge to criticise conduct of the lawyer. 11
11 a lawyer, in bis speech to the jury, makes statements of fact unfavourablcto a witness and which are not borne out by the evidence in the case, thepresiding Judge is entitled in his sumnyng-up to remove the effect of suchimproper statements. This process might well involve some criticism of theconduct of the lawyer concerned.
GRATIAEN J.—KiritcotUhie v. The King
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A PPEAL, with applications for leave to appeal, against twoconvictions in a trial before the Supreme Court.
M. M. Kumarakulasingham, with J. O. Jayatilleke and J. C. Thurai-ratnam, for the accused appellants.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 13, 1951. Gratiabn J.—
The appellants were jointly tried for the murder of J. A. Podisingho,which offence was alleged to have been committed on November 5, 1949.Podisingho had been employed since October, 1948, as a lorry driver on anestate in which the witness D. Manikkam was acting as superintendentduring the relevant period. The Crown alleges that on November 5,1949, Podisingho left the estate in order to visit his wife and that in thecourse of that journey he was waylaid and murdered by the appellants.
The case against the appellants was based almost entirely oncircumstantial evidence. The evidence that Podisingho, who hadadmittedly been away from the estate on leave at the end of October,had returned to the estate on November 2 and worked there untilNovember 5 on which date he once again left the estate with Mauikkam’spermission, formed a vital link in the case for the prosecution. Thesefacts were deposed to by the witness Manikkam. The learned presidingJudge made it very clear to the jury that the credibility of Manikkam wastherefore a question of fundamental importance for their consideration.Indeed, he specifically directed them that if they entertained reasonabledoubts as to the truth of his evidence, the case against the appellantsnecessarily broke down, as the rest- of the evidence was by itselfinsufficient to establish their guilt.
It is not surprising that in these circumstances the credit of Manikkamwas vigorously attacked by the defence in the course of the trial, and thelearned Judge charged the jury at some length and in considerable detailwith regard to the various points on which Manikkam’s evidence waschallenged. It so happened that in this connection the learned Judgeappears to have taken the view that the lawyer who appeared for one ofthe appellants had in some respects exceeded the bounds of decentadvocacy in the manner in which he attacked Manikkam’s integrity andreliability as a witness of truth. This opinion was communicated to thejury in the course of the summing-up, and at one stage the learned Judgeindicated to them that it might be his duty, whatever the result of thecase, to consider whether disciplinary action should be taken against thelawyer in question. That, of course, was a matter with which the jurywere not concerned.
Learned Counsel for the appellants does not suggest that the convic-tion was bad for misdirection as to the law or as to the evidence. Hecomplains, however, that the trial was unsatisfactory because, in con-sidering for the purpose of their verdict the fundamental question as to the
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GBATIAEN J.—Kiriwanthie v. The King
credibility of the witness Manikkam, the jury might well have been undulyinfluenced by the very strong views expressed by the learnedJudge on an allegedly extraneous matter, namely, the improprietyimputed to the lawyer who had attacked the witness. We are unableto accept this submission. It is quite impossible, and we do not presume,to lay down any hard and fast rule as to how a Judge should control theproceedings in a criminal trial over which he presides. When the creditof a prosecution witness has been attacked, or when specific allegationshave been made against him by way of defence, it may well be properin some circumstances and indeed necessary to point out to the jurythat certain of these criticisms or allegations have not been substantiatedby evidence. If, in this connection, the lawyer for the defence is sounwise, in the course of his final speech to the jury, as to make statementsof fact unfavourable to a witness which are not borne out by the evidencein the case, we do not doubt that it is the duty of the presiding Judgein his summing-up to remove the effect of such improper statements.This process might well involve some criticism of the conduct of the lawyerconcerned.
In the context in which the lawyer’s conduct was criticised in thepresent case, we have come to the conclusion that the learned Judgewas merely giving strong expression to his own opinion as to Manikkam'scredibility and as to the weight which be personally attached to thecriticisms offered and the allegations made against the witness-. At thesame time, the learned Judge had made it very clear to the jury that theywere the sole judges on all questions of fact, and that they were in no waybound by his opinions on such questions. For these reasons the Courtwas of the opinion that the grounds of appeal relied on by the appellantsmust fail and that the convictions must be affirmed. We accordinglymade'order dismissing the appeals. My judgment records the grounds ofour decision.
Appeal dismissed.