098-NLR-NLR-V-66-P.-L.-JUSTINPALA-Appellant-and-THE-QUEEN-Respondent.pdf
T. S. FERNANDO, J.—Justinpala v. The Queen
409
[In The Court Of Criminal Appeal]
1964 Present: T. S. Fernando, J. (President), Sri Skanda Rajah, J.,
and G. P. A. Silva, J.
P.L. JUSTINPALA, Appellant, and THE QUEEN, RespondentAppeal No. 75 of 1964, with Application No. 798. G. 50—M. G. Ghilaw, 48018
Evidence Ordinance—Section 32 (/)—Statement of dect-ased person as to the cause ofhis death—Weight to be attached to it—Duty of judge to direct jury in regardto the absence of cross-examination.
Where, in a trial fcr murder, the dying deposition made by the deceasedhas been admitted in evidence under section 32 (1) of the Evidence Ordinance,it is the duty of the judge to warn the jury adequately flat, when consideringthe weight to be attached to this evidence, they should appreciate that thestatement of the deponent had not been tested by cross-examination. Dicta tothe contrary in The Queen v. Vincent Fernando (65 N.L.R. 271) disagreed with.
Appeal against a conviction in a trial before the Supreme Court.
L. V. P. Wettasinghe, for the Accused-Appellant.
P. Golin Thome, Grown Counsel, for the Crown.
Gur. adv. vult.
August 31, 1964. T. S. Fernando, J.—
The appellant stood indicted on a charge of murder of a man namedKarunaratne and, after trial, was found guilty upon an unanimousverdict of the jury of the offence of culpable homicide not amountingto murder.
The only matter that merited attention on this appeal was the complaintmade on behalf of the appellant that the learned Commissioner whopresided at the trial did not direct the jury adequately on the mannerin which it should treat a dying deposition made by the deceased Karuna-ratne in the course of which he had stated he was stabbed by the appellant.
Reliance was placed by Counsel for the appellant on the decision inThe King v. Asirvadan Nadar1 where this Court stated :—
“ As the evidence was presented to the jury at the trial, the state-ments contained in the dying deposition P 9 formed to a large extentthe foundation of the case against the accused, and it was in ouropinion imperative that they should have been adequately cautioned
l{1950) 51 N. L. R. at p. 324.
LXVI18
2—R 2192-1,835 (11/64)
410
T. S. FERNANDO, J.—Justinpala v. The Queen
that, when considering the weight to be attached to this evidence,they should appreciate that the statement of the deponent had not
been tested by cross-examinationThere is no rule
of law under which evidence which is admissible under section 32 (1)may not be acted upon unless it is corroborated by independent testi-mony, but the jury should always be cautioned as to the inherentweakness of this form of hearsay evidence.”
Asirvadan. Nadar’s case (supra) was referred to in the later case ofLewis Fernando v. The Queen 1 where the point taken on behalf of theappellant was that the trial judge bad failed to caution the jury adequate-ly upon the danger of acting on the uncorroborated deposition of thedeceased. The trial judge in that case had drawn the attention of thejury to the absence of cross-examination of the deponent and indicatedthat they should be reasonably cautious before accepting it as true.No question, therefore, arose there in respect of any absence of cross-examination. In regard to the absence of a direction that a jury oughtnot to act on a dying deposition unless there was some reliable corrobo-ration, this Court appears to have preferred the view that such a directionwas not imperative in every case. It went on to point out that in anyevent there was such corroboration furnished by facts that were notin dispute in the case there considered. It must be emphasized thatthe trial judge in that case had discussed at length in his summing-upto the jury the evidence of what he referred to as “ conoborative factors
Learned Crown Counsel has drawn our attention to certain dicta in ajudgment delivered by this Court last year in the case of The Queen v.Vincent Fernando2 which appear to be in conflict with the statementsin the law contained in Asirvadan Nadar’s case (supra) and, in certainrespects, with the views implicit in the judgment of this Court in LewisFernando’s case (supra). In dealing with a certain statement madeby the deceased and admitted in evidence, the trial judge in VincentFernando’s case had directed the jury entirely in accordance with theobservations of this Court in Asirvadan Nadar’s case. It is difficult toappreciate how the appellant in Vincent Fernando’s case could reasonablyhave complained of prejudice to him by the direction there questioned.It was a direction favourable to him and, in the light of the decisionin Leivis Fernando’s case, indeed too favourable. This Court appearsto have concluded, inter alia, that the absence of cross-examinationof the deceased did not diminish the weight to be attached to hisstatement. After drawing attention to the actual direction to the jury,Basnayake C.J., in delivering the judgment of the Court, stated :—
“ The directions given above find no support in the provisions ofthe Evidence Ordinance. The statement of a deceased person isnot an inferior kind of evidence which must not be acted on unlesscorroborated. Like any other relevant fact it must be consideredby the jury having due regard to the; circumstances in which the
1{1952) J4 X. L. R. at p. 2} i
• {1963) 65 N. L. R. at p. 271.
T. S. FERNANDO, J.—Jualinpala v. The Queen
411
statement was made, the character and standing of the person makingit. It is wrong to give the statement of a deceased person an inferiorstatus, as it is also equally wrong to give it an added sanctity. Theprosecution was seeking to prove that the 1st, 2nd and 3rd accusedcommitted criminal acts in furtherance of their intention to kill thedeceased. In support of that fact the Crown placed before the juryevidence of the statements of tin deceased and of Mary Margaret.It was open to the jury to return a verdict against the accused ifthey believed the statement of the deceased or the evidence of MaryMargaret or both. That being the case the question of the corrobora-tion of the deceased’s statement did not arise. In the circumstancesthere was no need to over emphasize the absence of cross-examination.The weight to be attached to such a statement would vary with thecircumstances of each case and is a matter for the jury, and the absenceof cross-examination does not diminish it even as the mere fact thata witness is cross-examined does not increase it.”
It appears to us necessary to say here that we are unable to agree withthe statement above that implies that the absence of cross-examinationdoes not affect adversely the weight to be attached to a dying depositionor declaration. Nor can we agree that the question of corroborationof the deceased’s statement did not arise in the case there discussed.While the necessity of a direction in regard to corroboration of a dyingdeclaration or deposition must depend on the particular circumstancesof each case, we think the jury’s attention should ordinarily be drawnto the fact that the declaration or deposition, as the case may be, hasnot been tested in the usual mode available to a party7 affected b.v it,viz. by cros§-examination. There may, of course, be other ways oftesting the truth of such a statement, as for example, by the presenceor absence of other evidence corroborating the statement. In thisapparent conflict of decisions of this Court, we prefer to follow the earlierdecision in Asirvadan Nadar's case (supra) in so far as it requires a trialjudge to direct the jury in regard to the absence of cross-examinationIn making this preference, we are fortified by a contemplation of theunsatisfactory situation that must arise, for example, in a cas : wherethe only evidence relied on by the prosecution is a dying deposit,i >.n andwhere the direction to the jury follows the views expressed in VincentFernajido’s case (supra).
We think we are right in presuming that the learned Commissioner,being aware of the conflict of views appearing in the judgments of thisCourt noted above, considered it was his duty to follow the law as indicatedin the latest of these judgments. It is correct that lie did not, drawthe jury’s attention specifically to the absence of cross-examination ofthe deceased. There were, however, before the jury other evidence ofa direct nature to establish the identity of the assailant. There weretwo eye-witnesses, Juwan and Abeysinghe, called by the prosecutionto testify to the stabbing by the appellant. The question before thejury throughout was whether these two witnesses were to be believed.
412
Kolugala v. The Superintendent of Prisons
There was a discrepancy between the evidence of these two witnesseswho testified that the stabbing took place in the compound of the houseof the appellant and the dying deposition in which the deceased Karuna-ratne stated that he was stabbed by the appellant when he was seatedon a chair in the house of the appellant. The dying deposition wasmade use of by the trial judge in his summing-up mainly to direct thejury to consider whether the discrepancy between the evidence of thetwo eye-witnesses and the deposition renders the evidence of the twowitnesses unreliable. There is little doubt that the defence must itselfhave relied on the dying deposition for the same purpose. In thesecircumstances we saw no reason for disturbing the conviction anddismissed the appeal.
Appeal dismissed.