075-NLR-NLR-V-65-M.-MURUGIAH-Appellant-and-T.-B.-OUTSCHOORN-Inspector-of-Police-Respondent.pdf
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TAMBIAH, J,-—Mtrrugidh v. Cutechoom
1963Present: Tambiah, J.
M.MURUGIAH, Appellant, and T. B. OUTSCHOORN(Inspector of Police), Respondent
S. C. 677162—M. C. Badulla-Hcddumulla, 36,222Criminal procedure—Summary trial—Conclusion of case for defence■—Right of defenceto address Court—Criminal Procedure Code, ss. 6, 189(2), 189 (3), 2-3-5,296 (2),296 (3).
When, in a summary trial, Counsel for the defence wishes to address Court atthe conclusion of the case for the defence, the Magistrate is not entitled to tellhim that he has no right to do so.
Sumanasekere v. Sub-Inspector of Police, Ella (61 jST. L. R. 424) distinguished.
A PPEAL from a judgment of the Magistrate’s Court, Badulla-JHaldumulla.
Colvin R. de Silva, with D. R. Wijegoonewardene and N. M. S.Jayawickreina, for Accused-Appellant.
R. I. Obeyesekere, Crown Counsel, for Attorney-General.
Cur. adv. milt.
^February 12, 1963. T^jmbiah, J.—
The appellant was charged in the Magistrate’s Court with having-voluntarily caused grievous hurt to one Andy of 3S.alupah.ana Estate,Haputale, by assaulting him with a club. The learned Magistrate, aftertrial, found the appellant guilty and sentenced him to a term of sixmonths’ rigorous imprisonment. At the conclusion of the case for the-defence, the appellant’s counsel wished to address Court and the learnedMagistrate indicated to him that he could have only five minutes for thispurpose. Counsel then stated that he could not point out the contra*-dictions in the case within five minutes, whereupon the learnedMagistrate informed counsel that the latter could not address Court
TAMBIAH, J.—Murugiah v. Outschoom
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at that stage as a matter of right and proceeded to give his verdict. Theappellant has appealed from the learned Magistrate’s verdict, inter alia,on the ground that the procedure adopted by the learned Magistrate isnot only contrary to principles of natural justice but also is unwarrantedby the provisions of the Criminal Procedure Code and consequently theappellant has suffered prejudice.
No proposition has been more clearly established than that a mancannot incur the loss of liberty for an offence in a judicial proceedinguntil he has had a fair opportunity of presenting his case. This sacro-sanct right, founded on the plainest principles of natural justice, has beenone of the cherished possessions of every individual in a democraticsociety and continues to be one of the corner-stones of our criminaljurisprudence even today. An examination of the salutary provisions ofthe Criminal Procedure Code, and other enactments pertaining to criminallaw, show that the Legislature, far from imposing any curb on thiscardinal principle, has in many instances impliedly recognised it or hastaken it for granted.
The Criminal Procedure Code (Cap. 20) (hereinafter referred to as theCode), after stating that an accused shall, in summary trials, be permittedto cross-examine all witnesses called for the prosecution and called orrecalled by the Magistrate (vide section 189 (2)), proceeds to enact that,in such cases, “ the complainant and accused or their pleaders shall beentitled to open their respective cases, but the complainant or his pleadershall not be entitled to make any observations in reply upon the evidencegiven by or on behalf of the accused.” (vide section 189 (3)). Since nocurb has been placed on the defence counsel to make any observationsregarding the case for the prosecution and the defence, the right of anaccused to comment on the prosecution case has been tacitly assumed inthis provision.
Even in trials before the Supreme Court, the defence is given the rightto address the jury at the end of the case for the defence (vide sections235 and 296 of the Code). It must be noted, in this connection, that therule that the defence counsel, in his address to the jury, cannot bedeprived of his right to comment on the prosecution evidence, hasacquired the hard lineaments of law, despite the fact that no expressprovisions to this effect could be found in the Criminal Procedure Code.
Section 296 (2) of the Code, which applies to summary and non-summarytrials alike, enacts as follows :
“ When at any trial the evidence for the defence consists only of the
evidence of the person or persons charged, as the case may be, the
prosecution shall not have the right of reply.”
A right of reply presupposes a previous address by the defence and,therefore, the above section assumes that the defence has the right toaddress court even in a summary trial.
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TAMBIA.E, J.—Mwugioh xt, Outsehoom
The Code also provides that the failure at sway trial of any accused, togive evidence shall not be made the subject of adverse criticism by theprosecution (vide section 296 (3)), By implication, therefore, the failureof an accused to give evidence at his trial could be a matter of commentby not only the judge (vide The Kingv. Petris Appuhamy1; The King v.Geekiyanage John Silva ®), but also by the defence. Indeed, if theLegislature desired to prohibit an address or comment by the defencecounsel, it would have said so in clear express terms.
Further, the rules to be observed in a summary trial cannot be gatheredmerely from the provisions of the Criminal Procedure Code alone. In asummary trial, for example, where a witness gives evidence which differsmaterially from a previous statement made by him to the Police, it isopen to the prosecution to prove such statement, although no expresssanction for this procedure could be found in the Criminal ProcedureCode (vide Rasiah v. Suppiah (S. I. Police) 3). In Rasiah v. SuppiahCanekeratne J., said (at page 26S):
“ The rules to be observed in a summary trial cannot be gatheredfrom the provisions of the Criminal Procedure Code alone, one mustread the provisions of the law of evidence into the Code to evolve therules to be observed. By so reading one can find three phases. Firstthe prosecution case—the complainant can open his case : secondly, thecase for the defence, the accused can open his case and if he adducesevidence and closes his case he can address the Magistrate. Sub-sequent to this, (a) evidence may be called by the Magistrate himself(vide sections 190 and 419), (b) where it is necessary to impeach thecredit of a person, this may be called proof in. rebuttal, if the wordrebuttal is used in a very wide sense, but it is speaking strictly notrebutting evidence. After his adversary has closed his proof, a partyhaving the affirmative can only be heard in adducing proofs contra-dictory of statements of the other side or directly rebutting the proofsgiven by his adversary.”
In this dictum the right of the defence to address Court in a summarytrial is clearly stated. Dias, J., in the same case, characterises the rightof reply as “ highly prized ” (vide page 270). Basnayake J. (as he thenwas), after referring to the right given by section 155 of the EvidenceOrdinance to impeach the credit of a witness in certain ways, states(vide at page 273) :
“ It is a well-established rule of interpretation that when a right isgranted everything indispensable to its proper and effectual exercise isimpliedly granted.”
The right to cross-examine prosecution witnesses is specifically granted
by the provisions of the Evidence Ordinance (vide Gap. XU). Therefore,
the right to point out the discrepancies in the prosecution evidence is also
impliedly granted by the legislature.
{1942) 43 N. L. li. 412.
* {1949) 50 N. L. S. J255.
1
* {1945) 45 N. L. R.7S.
TAMBIAH, J.—Murugiah v. Oulschoom
375
In Rowel v. Ter era counsel urged that there was nothing in theCriminal Procedure Code which expressly conferred on the defence theright to comment on the prosecution evidence. Meeting this contention,Bertram C.J., observed (vide at page 457) :
“ Nothing is expressly said of the right of the pleader for the defenceto comment on the evidence of the prosecution, but in many cases apleader cannot effectually open his case without commenting on theevidence of the prosecution. It is impossible to believe that the Codeintended to impose an artificial restriction on advocacy.”
Again, the right of the defence counsel to address Court, in a summarytrial, is not only impliedly recognised by the Code, but also receivessanction by the introduction of English law on this matter. Section 6of the Code enacts : “ Where no special provisions have been made bythe Code, or by any other law for the time being in force in Ceylon, thelaw relating to Criminal Procedure for the time being in force in Englandshall be applied.” Many rules of English procedure have been adoptedby virtue of this section. Thus, the English practice whereby a prisonerhas the right to make an unsworn statement from the dock, instead ofgiving evidence from the witness box, has been adopted in Ceylon, althoughthere is no provision on this subject in the Code (vide The King v. VallayanSittambaran 2).
In England, the right of the defence to address Court was first
recognised by the Criminal Procedure Act of 1865 (vide Benham’s Act,
28 and 29 Viet. Cap. 18, section 2), and continues to be one of the
treasured rights of an accused person even today. This right is available
in Ceylon in view of section 6 of the Code which enacts that the English
Law will be applicable if the Code is silent on any matter.
As Cockbum, C.J., observed in Reg. v. Wainwright and another 3, the
prisoner’s counsel, in summing up the evidence for the defence, is not to
be restricted merely to remarks on the witnesses, but if anything occurs
to bim as desirable to say on the whole case, he is at liberty to say it.
The learned Crown Counsel urged that the ruling in Sumanasekere v.
Sub-Inspector of Police, Ella 4 supports the view of the learned Magistrate.
After a careful examination of that case, I am inclined to think that it could
be distinguished from the facts of the instant case and supports the
proposition that the defence has the right of reply. In that case, the
Magistrate gave the defence counsel the right to address the Magistrate.
After the Counsel had addressed the Magistrate for about half an hour,
the Magistrate made the following minute : “ I am refusing to hear
Mr. Nadarajah further as he has addressed me for about half an hour ”,
and then proceeded to find the charges proved. In appeal, H. N. G.
Eernando, J., stated (vide at page 425) :
“ It would seem therefore that the right of an accused or his pleader
to be heard after the close of the case for the defence in a Magistrate’s
Court is not statutory, but arises from practice which has apparently
1 (1922) 24 N. L. R. p. 456■ 3 (1875-1817) 13 Cox’s Criminal Law Casas at p. 173.3 (1918) 20 N. L. R. 257 (F.B.).4 (1957) 61 N. L. R. 424.
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Board of Trustees of Maradona Mosque v. Minister of JUducation
hardened into a rule. But there most he in reason a residuum ofdiscretion in the Court to impose a time limit on the length of theaddress having regard to the circumstances of each particular case/5
I respectfully agree -with Fernando J.’s observation that “ theremust be a residuum of discretion in the Court to impose a time limit onthe length of the address having regard to the circumstances of eachparticular ease If a judge cannot have control over his judicial pro-ceedings, then judicial work would come to a standstill. But in asummary trial, a Magistrate is not entitled to tell counsel for the defencethat the latter has no right to address him.
In the instant ease, however, I am of opinion that the learned Magis-trate has erred in taking the view that the defence counsel had no rightto address court. Further, by limiting the counsel’s address to a merefive minutes, the accused has been made to suffer prejudice. For thesereasons, I set aside the order of the learned Magistrate and direct thatthere should be a fresh trial before another Magistrate.
Case sent back for a fresh trial.