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May 29, 1911
* Present: Wood Renton J.
285—P. C. jBaiticaloa, 31,123.
Unsworn statements of witnesses made after their examination—Irregularadmission of evidence—Irregularities in criminal trial—CriminalProcedure Code, s. 425, and Evidence Ordinance, 8. 167.
Wood Rknton J.—It is no doubt quite a common practice incriminal courts to recall witnesses to give further evidence on theiroriginal, oath or affirmation. But it would be most unsafe toregard an original oath or affirmation as investing with the qualitiesof sworn evidence every desultory remark that may be openlymade in Court by a complainant, already examined, while anotherwitness is under examination.
Irregularities in criminal proceedings constitute no ground for thereversal or alteration of sentences on appeal, unless there has beena failure of justice.
“ We have no power, even if we had the will, to ignore either theletter or the spirit of the provisions of section 425 of the CriminalProcedure Code and section 167 of the Evidence Ordinance.*1
rjHHE facts arc fully set out in the judgment.
Elliott, for the accused, appellant.
No appearance for the respondent.
Cur. adv. vult.
May 29, 1911. Wood Renton J.—
The accused-appellant was charged in the Police Court of Batti-caloa with having committed mischief by shooting and killing abuffalo worth Rs. 50, in contravention of section 412 of the PenalCode. The learned Police Magistrate convicted him and sentencedhim to six months* rigorous imprisonment, and also to pay a fine ofRs. 50, or in default of payment to undergo an additional period oftwo months’ rigorous imprisonment. If the fine was paid, the wholeof it was to go to the owner of the buffalo as compensation for theloss that he had suffered. The evidence, which there is no reasonto distrust, proves beyond all doubt the commission by the appellantof the offence charged ; and his counsel mainly relied, in supportingthe appeal, on the alleged admission by the Magistrate of an un-sworn statement by the complainant, suggesting a motive for thekilling of the buffalo, as evidence in the case. The statement inquestion, which appears from the record to have been Interjected by
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the complainant during the examination of another witness for theprosecution, was in these terms : “ The accused offered to buy theanimal from the man who sold it to me ; that is why he did this. ”Although the appellant was defended by a proctor, no exceptionwas taken to the statement, nor was any application made to theMagistrate that the complainant should be recalled to verify it onoath and submit himself, if necessary, to cross-examination uponthe point I felt, however, at the argument that the appellant’sproctor may well have been unaware that the complainant’sinterlocutory observation had been recorded as evidence, or that thelearned Magistrate would rely upon it, as he has done in his judgment.I therefore sent the case back to the Police Court, and invited theMagistrate to state, firstly, the circumstances under which theobservation in question came to be entered on the record, and in thenext place, whether he had taken account of it in fixing the amountof punishment The learned Magistrate says that (as one wouldgather indeed from the record) the complainant’s statement wasvoluntarily interposed while another witness was giving evidence ;that, as the complainant had already been affirmed, he regarded thesubsequent statement as forming part of his evidence ; and that hedid take account of it in fixing the amount of punishment, for other-wise, in rue absence of malice, a fine would have met the justice ofthe case. It is no doubt, as the learned Magistrate says, quite acommon practice in criminal courts to recall witneses to give furtherevidence on their original oath or affirmation. But it would be mostunsafe to regard an original oath or affirmation as investing with thequalities of sworn evidence every desultory remark that may beopenly made in Court by a complainant, already examined, whileanother witness is under examination. The complainant in thiscase ought to have been at once checked when he interrupted theproceedings, and no notice should have been taken of what he said,unless he was recalled at a later stage to make that statement as awitness. Had the statement been tested by cross-examination, itwould probably have been found to be mere hearsay. I attach npimportance to the fact that it was not challenged by the defence. Ihold that there has been in this case an improper admission of evi-dence. The appellant has been prejudiced as regards his punishment.In any event, the sentence must be modified. So much is clear.There remains, however, the wider and more important question,whether the improper admission of the complainant’s statement asevidence in the case is a ground for setting aside the conviction. Inview of the terms of section 167 of the Evidence Ordinance (No. 14of 1895), I should have said, if I had had to decide the case withoutargument, that the conviction must stand. The evidence improperlyadmitted bears directly on the question of motive. The fact thatthe appellant did shoot a buffalo of the value of Rs. 50 belonging toanother man is proved by eye-witnesses, believed by the Police
May 29,1911
WoodKkxton J.
Manuelr. Kona-paniekan
( 188 )
May 39,1911
WoodRenton J.
Manualv. Kawa-panirkon
Magistrate, who has recorded both the evidence and the reasons forhis judgment with care, and no justification or excuse for that acthas been furnished by the appellant, who, indeed, denies that heshot the buffalo. On the face of the record there is no reason whythe witnesses for the prosecution should not have been believed. Theappellant’s counsel urged me strongly, however, to set the convictionaside, and said, in effect, that the Bar looked to the Supreme Courtto instruct the Judges of first instance as to their duties by objectlessons of this kind. I have heard this argument suggested before.But this is the first time that it has been presented to me in a definiteform, and as there is nothing else to be said in support of the appealagainst the conviction, I propose to consider it. For the SupremeCourt to act on any such principle, as the argument that L havestated seeks to lay down for its guidance, would, in my opinion,be quite wrong. In matters of this kind a judicial tribunal musttake account of the whole body of conditions under which justice hasto be administered. The conditions that we have to deal with inCeylon are of such a character that the interference of the SupremeCourt with criminal proceedings on the ground of mere technicalirregularities would most seriously injure the best interests of theColony. I am assuming for the present, what is not the case, thatthe Legislature has left to us such a right of interference. The casewith which in early days criminal proceedings could be quashed inEngland on the ground of errors of form was at no time a creditablefeature of English jurisprudence. But in England it has at leasta meaning. The technicality of the old English criminal procedurehad its roots struck deeply into the past. It sprang from the Englishconception of a criminal trial as a lawsuit between the prosecutorand the accused. When one realizes that fact there is no difficultyin seeing how all the subtlety that we find in the old English civilprocedure obtained a footing in the region of the criminal law.Strangely enough, in Scotland, where criminal procedure wasinquisitorial and not litigious, the same vicious system was intro-duced and reached a ranker growth. Both in England and inScotland, however, lawyers have long been alive to its mischievousresults, and have been acting on the principle that if legal techni-calities cannot be wholly excluded, they shall at least be preventedfrom materially impeding the course of judicial proceedings, andthe attainment of that substantial justice which should be their onlyaim. I may refer in this connection to the Summary Jurisdic-tion Act, 1848 (12 and 13 Viet. c. 45), the Criminal Procedure(Scotland) Act, 1887 (50 and 51 Viet, c. 35), and the SummaryJurisdiction (Scotland) Act, 1908 (8 Ed. VII. c. 65). In Ceylon asystem like the old strict English law of criminal procedure ismeaningless, and its introduction here, at the very time when it isbeing abandoned in England and Scotland, would be a retrogradestep in the development of the law. Moreover, we’are bound to
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remember that in very many of the courts of first instance in thisColony the criminal law has to be administered by Judges whoare not professional lawyers, or who, even where they have beenadmitted to the Bar here or in England, have not always had theadvantage of practising in our Courts. If the Supreme Court werenot merely to be (as it ought to be) careful to mark what seems amissin the criminal proceedings that come before it in appeal, but topunish the Magistrates—and, be it added, the Colony—for formalerrors, in cases where substantial justice has been done, the practicewould be productive of results which I am afraid that those whoaddress to us arguments of the sort that I am considering imperfectlyrealize. It would make the administration of criminal justice amere lottery, and offer to people who delight already to gamble withlitigation an irresistible temptation to gamble also with crime.Here, as in India, the Legislature has foreseen these points, and hasexpressly provided that irregularities in criminal proceedings shallbe no ground for the reversal or alteration of sentences on appeal,unless there has been a “ failure of justice,” and that no new trial orreversal of any decision shall be allowed in any case on the groundof the improper admission of evidence if it appears that indepen-dently of the evidence so admitted there are sufficient materials tojustify the conclusion at which the trial Judge arrived. In Ceylon therule above stated as to irregularities which existed under the old Codeof Criminal Procedure, 1883, has been reproduced in the presentCode. The rule as to the improper admission of evidence is embo-died in the Evidence Ordinance (No. 14 of 1895). We have no power,even if we had the will, to ignore either the letter or the spirit of thesestatutory provisions. There are, of course, irregularities the merepresence of which imports prejudice, such as the trial of a man for anumber of different offences at the same time, or the failure of theCourts to give accused persons a chance of defending themselvesbefore exercising the summary powers of punishment for contempt.But with these we are not here concerned. I desire to add that, inmy opinion, there is nothing in the present condition Of the courtsof first instance which could offer any excuse for the kind of inter-vention on the part of the Supreme Court with which I have beendealing iii this judgment. Mistakes are made there, as I have nodoubt they are made here. Sometimes one feels in hearing appealsthat mistakes have been made which ought to have been avoided.But the first instance criminal work pf this Colony is, on the whole,carefully, conscientiously, and correctly done. In the present caseI affirm the conviction, but set aside the sentence and direct that theappellant pay a fine of Rs. 100, or in default thereof undergo sixweeks’ rigorous imprisonment. If the fine is paid, one-half ofit must be paid to the complainant as compensation for the loss ofthe buffalo.
Sentence varied.
Man 20,1011
WoodKenton J.
Manuelt>. Kana-panickan