114-NLR-NLR-V-70-M.-K.-FRANCIS-ALWIS-Appellant-and-THE-QUEEN-Respondent.pdf
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Alwis v. The Queen
[Court of Criminal Appeal]
1967 Present: T. S. Fernando, A.C.J. (President), Abeyesundere, J.,and Alles, J.M. K. FRANCIS ALWIS, Appellant, and THE QUEEN,
Respondent
C. C. A. Appeal 109 of 1967, with Application 143S. C. 198 of 1966—M. C. Gampaha, 5799J A.
Criminal procedure—Calling of fresh evidence by Court after case for defence is closed—Scope of s. 429 of Criminal Procedure Code—Misdirection—Court of CriminalAppeal Ordinance, proviso to s. 5 (2).
Where, after the cases for the prosecution and the defence have been closed,the Court, purporting to act under section 429 of the Criminal Procedure Code,calls a fresh witness whose name appears on the list of witnesses contained inthe indictment, it would be wrong to direct the jurors that the fresh evidencemay be relied upon, either by itself or as corroboration of the evidence of theprincipal witness for the prosecution, to convict the accused.
Appeal against a conviction at a trial before the Supreme Court.
R. S. R. Coomaraswamy, with E. St. N. D. Tillekeratne, G. Sene-viratne and L. F. Ekanayake (assigned), for the accused-appellant.
E. R. de Fonseka, Senior Crown Counsel, for the Crown.
j'
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Cur. adv. vult.
550
T. S. FERNANDO, A.C.J.—Alvria v. The Queen••
November 17, J967. T. S. Fernando, A.C.J.—
The appellant (the 1st accused) and his son (the 2nd accused) stoodtheir trial before a judge and jury on a charge of attempt to commit theoffence of murder by cutting a man named Marshal with a sword. Thejury returned a unanimous verdict of guilty of voluntarily causinggrievous hurt as against the appellant, but by a similar verdict found hisson not guilty of any offence. The son was accordingly acquitted, andthe appellant was sentenced to 10 years’ rigorous imprisonment.
Learned Counsel for the appellant has contended before us that, by aviolation of the rules governing the calling of fresh evidence after thecases for the prosecution and the defence had been closed, the appellanthas been deprived of a fair trial.
The names of two witnesses who could have testified as to the identityof the person or persons who made an attempt upon the injured manMarshal appeared on the list of witnesses contained in the indictment.These two witnesses were Marshal himself and another man bearing the #name of Dharmadasa. Counsel for the Crown who must ordinarily bepresumed to be aware of the strength and the weakness of the Crowncase decided, as he was undoubtedly entitled to do, to call only one ofthese two witnesses, viz., Marshal. That witness stated that the appellantand his son both cut him shortly after midnight on the evening inquestion. At the close of the case for the Crown both the appellant andhis son gave evidence on their own behalf denying their presenceanywhere near the place where Marshal was alleged to have beenattacked. At the end of the day there was no other evidence whichthe defence wished to call, and although there is no record made thatthe defence case had then been closed, the nature of the recordedproceedings thereafter makes it fairly clear that the defence had indeedclosed its case. What remained for the next day was for counsel toaddress and for the judge to charge the jurors summing up the evidenceand laying down the law by which they were to be guided.
The next day’s proceedings commenced with the learned judgeaddressing Crown Counsel and informing him that he wished to callDharmadasa ec as my witness ”. Crown Counsel stated “ Very well, myLord ”. I make mention of this proceeding in Court because the recorddoes not indicate that the learned judge addressed defence counsel onthe matter at all. Although it was an assigned junior counsel who wasconducting the defence of both accused, there was no inquiry made fromhim as to whether he had any objection to the course of action proposed.Dharmadasa was then called, and his entire examination-in-chief (whichran into four typed pages) was conducted by the learned judge. CrownCounsel was asked whether he wished to cross-examine Dharmadasa,and, on his replying to the judge that he did not, Dharmadasa was cross-• exarained at som# length by defence counsel. Dhring that ^cross-examination, counsel marked two passages from Dharmadasa’s evidence
560
T. S. FERNANDO, A.C.J.—Alwis v. The Queen
as recorded in the Magistrate’s Court, probably with# the object ofdiscrediting bis evidence on certain matters which do not appear to havebeen of any real importance. Defence counsel was next allowed toprove these two contradictions by calling the Clerk of Assize to producethe record of the Magistrate’s Court proceedings. When that had beendone, defence counsel made an application that the police officer whoprepared the sketch be called by the Court. The Crown, it may bementioned, had not called this police officer, but his name was on the listof witnesses and, it may be assumed, he was present and available to becalled. Defence Counsel’s object was to prove that the place of attackas shown to the police officer was some distance away from the place ofattack as deposed to by Marshal and Dharmadasa. That part of therecord of the trial as relates to the unsuccessful attempt of the defencecounsel to have this evidence placed before the jury in order at least todiscredit Dharmadasa in respect of the place which he said was the placeof attack is reproduced below :—
Defence Counsel : My Lord, I would like to make an application that•Your Lordship be pleased to call the officer who made
the sketch.
Court:I refuse that.
Defence Counsel : May I make my submissions why I want that
evidence ?
Court :Why should I call ? You had your opportunity of
calling any witnesses you wanted, and if you did notwant them why should I call them ?
Defence Counsel : In the light of this witness’s evidence whom we did
not anticipate would be called
Court:What is your complaint ? Is it your complaint that
I have no right to call witnesses ? How does thatarise ?
Defence Counsel : No, my Lord, with respect I submit that it would be in
the interests of justice to have the officer who madethe sketch called because the injured person pointedout to him a place where he said he was cut by the 1staccused which is entirely different from the placewhere it had happened.
Court :You have no right to make such a submission in the
presence of the jury—that anything incorrect waspointed out. If you wanted to make any suchsubmission you should have first asked the jury toretire. You must not lead inadmissible evidencein that fashion.
Defence Counsel : f am sorry, my Lord. May I mak^th^fc application ?Court :I refuse the application to call the sketch officer.
T. S. FERNANDO, A.C.J.—Alwie v. The Queen561
The scope #f a court’s power under section 429 of the CriminalProcedure Code to call a witness at any stage of a trial has been examinedin many cases by this Court.. In The King v. Aiyadurai1, it was observedthat the power is not incompatible with the relevant English rule, andthis Court formulated the principle accepted in the English Court ofCriminal Appeal to be that fresh evidence called by a judge ex propriomotu, unless er, improviso, is irregular and will vitiate the trial, unless itcan be said that such evidence was not calculated to do injustice to theaccused.
The Crown in the instant case decided to rest its proof with theevidence of the single witness Marshal. The learned Commissionerwho presided at the trial, having called Dharmadasa as a witness inpursuance of the power vested in a court by section 429, expressedhimself thus in the course of his charge to the jury :—
“ Now, the reason why I called Dharmadasa today was because Iwanted you to know that Dharmadasa who was there and who claimsto have come there straightaway and seen the assault did not see the*2nd accused there. That, gentlemen, would be of some importance to.you, because, while it is just possible that witness Marshal is possiblytrue in the story that he says, it is curious that Ruban and this 2ndaccused have disappeared not to be seen at the time Dharmadasacomes to see Puran (the 1st accused) still cutting the man. So that,in those circumstances, in view of the fact that the injured man himselfin the first instance to the Police is recorded as having said “ Purancut ”, coupled with the fact that Dharmadasa did not see the otheraccused, I think, in my opinion, would make you doubt, apart fromanything else, as to whether it is safe to find the 2nd accused guilty ina case like this.”
If the sole effect of Dharmadasa being called by the Court after theclose of the evidence for the defence was to assist the jury to decidewhether the 2nd accused was a participant in the attack, the courseadopted by the learned Commissioner could not be the subject oflegitimate criticism. As was pointed out by this Court in The Queenv. Don Wilbert2, the rule in regard to the calling of fresh evidence isstrictly observed only when such evidence is intended to support theprosecution case, but where the defence is concerned a certain degreeof latitude is permitted.
The actual shape the charge to the jury took thereafter was, however,unfortunate. Said the learned Commissioner in respect of the evidenceagainst the appellant :—
“ In regard to the first accused there is the evidence of Dharmadasa
who says I saw the 1st accused cut Marshal as he lay fallen$3o
that it is far }*>u to decide whether you can act*on the evidence of
* {1942) 43 N. L. R. 289.
» (1962) 64 N. L. R. at SP.
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T. S. FERNANDO, A.C.J.—Alwia v. The Queen
Marshal as against both accused. If you doubt his evidence, first ofall, in regard to the 2nd accused, then there is no evidence against the2nd accused and he must be acquitted. Then, can you act on hisevidence against the 1st accused ? For the moment consider that hehad not given evidence, and that the only witness was Dharmadasawho gave evidence and said “ I saw this 1st accused cutting Marshal ”.Would you act on the evidence of Dharmadasa ? Because, if you feelthat it is safe to act on the evidence of Dharmadasa, then Dharmadasacorroborates Marshal in regard to the cutting. Then, even if you donot believe Marshal by himself, it is open to you to say Well, webelieve him because he is corroborated by Dharmadasa ” or “ We acton the evidence of Dharmadasa alone ”. These are entirely mattersfor you.”
The jury’s verdict clearly shows that they relied either only onDharmadasa’s evidence or on that part of Marshal’s evidence as wascorroborated by Dharmadasa. It is therefore relevant to remind ourselvesof what was stated in John Owen's case1 that
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“ The theory of our law is that he who affirms must prove, andtherefore it is for the prosecutor to prove his case, and if there is somematter which the prosecution might have proved but have not, itis too late, after the summing-up, to allow further evidence to be given,and that where it might have been given by one of the witnessesalready called or whether it would necessitate, as in Rex v. Browne 2,the calling of a fresh witness.”
The prosecution had an opportunity of calling Dharmadasa, butdeliberately refrained from doing so. Probably the prosecutor correctly feltthat the calling of Dharmadasa would weaken his case against the 2ndaccused. Each of the accused then gave evidence in support of his respectivealibi. Thereafter any application by the Crown to call Dharmadasa,which could only have been done by way of evidence in rebuttal, couldnot possibly have been entertained, and Crown Counsel did not attemptto make any such application. Was it, then, open to the Court to callDharmadasa ? It is sufficient if I were to quote from the decision ofJohn Owen {supra).
“ Now we do not desire in any way to limit the discretion of a judgeto admit evidence for the prosecution after the case for thedefence has been closed, where it becomes necessary to rebutmatters which have been raised for the first time by the defence.”
The Crown not having attempted to rebut any evidence called by thedefence, the action of the Court in calling the evidence of Dharmadasa,although it may not of course have been so intended, had the unfortunateeffect of imperilling the defence of the appellant and placing him at anunfair disadvantage^ This Court, in The Queen v. Mendis Appu 3, stated1 (1952) 2 Q. B. 362.3 (1943) *29 Cr. A. B. 10*6.
(1960) 60 G. L. W. 11.
H. N. G. FERNANDO, C.J.—Perera v. Ambalavanar563
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that “ the powers conferred by section 429 should be used with caution.
In a trial by jury the functions of the prosecution, the defence and the
judge are laid down in the Code, and the Court should take care not to
leave room for any impression that it is using its powers under section
429 to help the prosecution to discharge the burden that rests on it
The ground of appeal advanced is, in our opinion, sound.
For the reasons indicated above, we quashed the conviction andsentence of the appellant ; but, being of opinion that this is a case inwhich we should act under the power conferred by the proviso to section5 (2) of the Court of Criminal Appeal Ordinance, we ordered a newtrial of the appellant on a charge of voluntarily causing grievous hurtwith an instrument of cutting, an offence punishable under section 3F7of the Penal Code.
Sent back for re-trial.