PAULINE PUTH DE CROOS, Appellant, and THE QUEEN, Respondent

043-NLR-NLR-V-71-PAULINE-PUTH-DE-CROOS-Appellant-and-THE-QUEEN-Respondent.pdf


Paulino do Croos v. The Queen
169
[Court 07 Criminal Appeal]
1968 Present: T. S. Fernando, J. (President), Tambiah,and Slrlmane, J.PAULINE RUTH BE CROOS, Appellant, and fHK QUEEN,RespondentC. C. A. Appeal No. 18 07 1968, with Application No. 22 op 19688. C. 73/67—M. C. Colombo South, 689591A
Trial before Supreme Court—Admission of bad moral character of the excused—-
Misreception of inadmissible evidence—Circumstances when the Court of
Criminal Appeal trill nevertheless dismiss the appeal of the accused—Court of
Criminal Appeal Ordinance, ss. 2 (6), 5 (1), 5 (2)—Evidence Ordinance, ss.
64, 167—Criminal Procedure Cede, es. 6, 234.
The proviso to aeation 6 (1) of the Court of Criminal Appeal Ordinance 'whichstates that the Court of Criminal Appeal may, notwithstanding that they areof opinion that the point raised in the appeal might be decided in favour ofthe appellant, dismiss an appeal if they consider that no substantial miscarriageof justice has actually oocurred, would be applicable in case of misreceptionof inadmissible evidence if it is evident that no reasonable jury, after beingproperly directed, could have failed to convict the appellant on the rest of theevidence to which no objection oould be taken.
In an indictment against the accused-appellant as the 1st accused and anotheras the 2nd accused, both accused were charged jointly (1) with conspiracy tocommit or abet the offence of murder of a boy who was a son of the 2nd accused,and (2) with murder of the said boy. On the sixth day of the trial the 2ndaccused was discharged, in terms of section 234 (1) of the Criminal ProcedureCode, on the ground that there was no evidence upon which he could be con-victed. The trial proceeded thereafter against the 1st accused only and she wasfound guilty by the jury, by a divided verdict of 6 to 1, of the offence of murder.The main ground of the present appeal was that, before the 2nd accused wasdischarged, certain evidence was led or elicited about an improper associationbetween the appellant and the 2nd accused and her “ affairs ” with other men;It was urged that the appellant waa at least entitled to a fresh trial on theground that this evidence of bad moral character would have been renderedinadmissible by section 54 of the Evidence Ordinance if the Crown had notrecklessly joined in the indictment the 2nd accused who was discharged. Itwas submitted that the fact that the trial Judge had cautioned the jurorsto disregard the evidence was incapable of erasing from their minds theprejudiced impression caused by it.
Held by T, 8. Fernando, J., and Tambiah, J., (Sirimanb, J., dissenting),that, in the present case, notwithstanding the fact that the jury was in possessionof evidence tending to show that the appellant was a girl of loose morals, whichevidence could not have been led in a case against her if she had stood her trialalone, there was no substantial miscarriage of justice. The proviso to section6 (I) of the Court of Criminal Appeal Ordinance was therefore applicable.
Held further, that the discharge of the 2nd accused before the prosecutionhad technically closed its case did not cause any prejudice to the 1st accused.
Lxxl—8—9
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T. S. FERNANDO, J.—Pauline de Croce v. The Queen
Ap
'PEAL against a conviction at a trial before the Supreme Court.
O.E. Chitty, Q.C., with E. R. 8. R. Coomarasioamy, A. M. Coomara-etoamy, Anil Obeyesekere, Kumar Ameresekere, P. Chakradaran and TyroneFernando, for the accused-appellant.' •
8. A. Pullenayegum, Senior Crown Counsel, with Kenneth Seneviratneand L. D. Guru&wamy, Crown Counsel, for the Crown.
Cur. adv. vult.
March 24, 1968. T. S. Fernando, J.—
The Attorney-General presented to this Court an indictment containingtwo charges against the appellant as the 1st accused and' another asthe 2nd accused alleging (1) conspiracy to commit or abet the offence ofmurder of one Ramdas Gotabhaya Kirambakanda in consequence ofwhich conspiracy the murder was alleged to have been committed (S. 113Bread with SS. 290 and 102 of the Penal Code) and (2) murder of the saidperson (S. 296). The deceased Gotabhaya was a school-boy of the ageof 11 years and a son of the 2nd accused. The appellant is an unmarriedgirl living with her parents at Dehiwala in which town the 2nd accused alsoresides with his family. The two accused were tried on this indictmentbefore a judge and jury. After five days of evidence had been recorded,counsel for the 2nd accused objected to the admissibility of a certainpiece of evidence sought to be led by the Crown and legal argument onits admissibility was permitted in the absence of the jury. At the timeof adjournment on the fifth day, the trial judge, again in the absence ofthe jury, addressed Crown Counsel as follows:—
“ I certainly will have to direct the jury that this cannot in any wayadd very much unless on the rest of the evidence you have made outa case. ”
On the morning of the sixth day, Crown Counsel addressed the Courtand said:—
t( Your Lordship indicated that, even if you were disposed to permitthat item of evidence that I was seeking to lead, Your Lordship willdirect the jury that that evidence has very little weight or value assuch against the 2nd accused. In those circumstances, it is not myintention to pursue the application. ”
A little later, the learned judge said to Crown Counsel:—
“ So that this alleged statement just hangs in the air without anyimpact. I understand from your opening that apart from this littleitem of evidence you are relying solely upon subsequent conduct. ”The reoord of the proceedings thereafter reads as follows :—
Croton Counsel: " Yes, my Lord. The various items relate to thissubsequent conduct that I was seeking to urge as
T. 8. FERNANDO, J.—Pauline de Crooa v. The Queen
171
being circumstanoea against him. If Your Lordshipis of the view that the conduct after the event willbe of no avail, I do not wish to puisne my appli-cation. ”
Court: “ It is oertainly of no value whatsoever unless the other e videnceis trusted. Now that I am aware of the important evidenceI think I should state at this stage that there is no case againstthe 2nd accused. In this situation there may have been subse-quent misconduct despite the innocence before, but your caseis based on subsequent conduct. ”
Crown Counsel: “ If that be Your Lordship’s view, I will not pursuemy application. ”
The jury was then recalled, and the Court addressed them as follows :—-
** If you remember, at the commencement of this case I said to you'that you are the judges in this case and you will ultimately have todecide the guilt of the accused; but there is a power which I have,namely, to decide whether there is evidence upon which you canconvict. I have now become aware of the sort of evidence which theprosecution proposes to lead as against the 2nd accused. I think youwill realise that thus far, if the evidenoe implicates anyone at all, theevidence you have so far heard is directed against the 1st accused, andcounsel has informed me of the nature of the evidence which he canlead, if he wishes, against the 2nd accused. I am satisfied that therewill be no evidence upon which a jury can reasonably convict the 2ndaccused. Therefore, I direct you now to enter a verdict of notguilty against the 2nd accused. You are bound to follow thatdirection. ”
The verdict was accordingly signed by the foreman, and it wascommunicated to the 2nd accused and he was thereupon acquittedand he left the dock.
If we may say so with respect, this Court shares the opinion of thelearned trial judge that there was no evidenoe upon which a jury couldreasonably have convicted the 2nd accused. We indicated as much toCrown Counsel who argued at this appeal. He tabulated for us all theitems of evidenoe the Crown had relied on against the 2nd accused andcontended that the most important item of evidence was that over whichthe legal objection noted above had been raised, and in respect of whichthe trial judge said “ this cannot in any way add very much unless onthe rest of the evidence you have made out a case. ” Indeed, I thinkthe 2nd accused should not have been put on trial at all. An accusedperson should not be put to the expense and harassment of a trial on acharge of murder unless it can fairly be said that the evidence is suchthat, if believed, a reasonable jury could convict him of the offence chargedOr of a lesser offence. The Legislature has placed the Attorney-Generalbetween the committing Magistrate and the court of trial in the interestsof justice, and those interests can be secured not only by safeguarding
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T. S. FERNANDO, J.—Pauline de Croos v. The Queen
the interests of the State but also, if I may say so, by looking at theother side of the medal as well, namely, the interests of the accusedperson.
It may be technically correct to say that a trial judge cannot direct thejury to return a verdict of not guilty in respect of any person indicteduntil the prosecution has closed its case—vide section 234 of the CriminalProcedure Code. Certainly, according to English Criminal Procedureit is not permissible for a court to quash an indictment on the ground that,if the depositions are examined, it would be found that the evidence forthe prosecution would be insufficient to support a conviction—seeRegina v. Chairman, County of London Quarter Sessions, ex parte Downes1.Here there was no quashing before trial; had it been otherwise, section6 of our Criminal Procedure Code may have rendered the English lawapplicable. The procedure actually adopted by the learned judge inthis case is, to our knowledge, not infrequently resorted to by judges inthis Country when it becomes apparent to the Court and counsel thatto continue is to waste precious time and that there is no purpose in*' flogging a dead horse ”. We ourselves have no desire, at this stage ofthe development of the practice of stopping trials at their virtual thoughnot their technical end, to insist on technicality to the point almost ofsanctifying it. Nor do we think that the course the learned judge tookof stopping the case as against the 2nd accused caused any prejudice tothe appellant. I am not unmindful of the point raised on behalf ofthe appellant that on the day following that on which the 2nd accusedwas acquitted, counsel for the Crown, in the presence of the jury,presumably for the purpose of correcting an incorrect newspaper report ofthe previous day’s proceedings in court, submitted that he had not statedto court that there was no evidence against the 2nd accused and that itwas not correct that the gentlemen of the jury agreed that there was noevidence. I do not find it possible to appreciate why this statementwas made, particularly in the presence of the jury. The Court hadruled that there was no evidence upon which a reasonable jury can con-vict the 2nd accused, and that should have been an end of the matter.Neither the agreement of Crown Counsel nor that of the jury wasnecessary. The trial judge could have so ruled even if both CrownCounsel and the jury were in disagreement with him on the point. TheCourt wa? not concerned with newspaper reports, particularly afterthe 2nd accused had been acquitted. I do not, however, agree with thecontention of counsel for the appellant that this episode in court could ormight have caused prejudice to the appellant’s case.
The case of the Crown thereafter proceeded as against the appellantalone for another three days without any effort made on the part ofanyone to have the indictment amended. After the acquittal of the2nd accused, the first charge of conspiracy to commit or abet murdershou’d have been struck out, and the second charge had to undergominor consequential amendment. The necessity for doing this was
1 (1954) 1 Q. B. 1.
T. 8. FERNANDO, J.—Pauline de Crooa v. The Queen
173
inadvertently overlooked, and the required amendments of the indict-ment were made only at the time the Crown’s case was being closed withthe statutory statement of the appellant being read to the jury. Theevidence of certain witnesses was thereafter called for the defence and thetrial judge permitted the Crown to lead the evidence of a fresh witnessin rebuttal of certain evidence called for the defence. Counsel thenaddressed the jury and the trial judge summed up the case. The jury,after a retirement for consideration lasting about two hours, returned adivided verdict of 6 to 1 finding the appellant guilty of murder, andsentence of death was accordingly pronounced on her.
The main ground of appeal centred round the admission of certainevidence relating to an improper association between the appellant and,the 2nd accused and her “ affairs ” with other men. This evidence,it was urged, amounted to evidence of bad character of the appellant,and therefore, rendered irrelevant by section 54 of the Evidence Ordi-nance. All the evidence to which exception was taken before us had beenled or elicited before the acquittal of the 2nd accused. So long as the2nd accused stood charged along with the appellant with conspiracy tomurder and with murder itself, it was not possible to say that the evidencecould have been excluded. Moreover, no objection was raised at thetrial itself to the leading of the evidence now questioned. The com-plaint on appeal is that, even conceding that that evidence was admissiblewhile the 2nd accused also remained an accused person, in a trial againstthe appellant alone the evidence was wholly irrelevant. It amountsto evidence of bad moral character and would have led the jury to forma prejudice against the appellant generally, and thereafter all cautionadministered to the jurors to disregard that evidence would in practicebe incapable of erasing from their minds the prejudiced impression whichit would have left behind. In Mr. Chitty’s picturesque phrase, it wouldhave sunk into the minds of the jury even as ink is indelibly ab orbedby blotting paper.
In regard to this complaint, I have to observe that in the case of oneof the witnesses called, indeed the first witness called by the Crown atthe trial, Mrs. Kanagaratnam, a lady living next door to the appellant,the evidence that may be termed evidence of bad character was elicitedin answer to counsel for the appellant herself and for the 2nd accused.Counsel appear to have thought at that stage that the questions whichwere designed to elicit those answers were neoessary for their respectivecases. But while the evidence given by Mrs. Kanagaratnam may besaid to have been elicited by the defence itself, Crown Counsel before ushas conceded that the eviden e of certain other witnesses, to wit,Speldewinde, Wamakulasunya, and Edmund de Silva, which also affectthe appellant’s moral character and was led by the Crown would nothave been admissible in the case had the appellant stood her trial aloneon a charge of murder of this boy. The argument of the Crown in respectof this evidence loses strength by reason of the fact—apparent from thelearned judge’s summing-up and from the statement made to us by oneof the Crown Counsel who appeared also at the trial—that no motive on
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T. S. FERNANDO, J.—Pauline de Croos v. The Queen
the part of the appellant for desiring to kill this boy was being advancedor suggested. For instance, it was not the suggestion of the Crown thatthe deceased was aware of the relationship between his father and theappellant, and therefore one or both of the accused may have desiredto do away with the boy so that their illicit association may not bedisclosed to others like the mother of the boy.
In the circumstances in which the trial court found itself at the stagewhen the learned judge directed the jury to enter a verdict of not guiltyin respect of the 2nd accused, we think that, having regard to thereceipt of evidence of the unsatisfactory moral character of the appellant,the court might well have considered favourably the question of orderinga fresh trial of the appellant on an altered indictment. I must, however,observe that no application with the object of securing such a fresh trialwas made on behalf of the appellant, and, in any event, the matter wasone which lay in the discretion of the trial judge. Five days of trial hadalready been expended; the learned trial judge was probably acutelyconscious of the state of congestion of the trial rolls in our Assize Courts ;and he appears to have thought that the interests of the appellantcould be sufficiently safeguarded by an adequate direction by him to thejury to disregard the evidence the receipt of which is now the subject ofcomplaint.
That direction was contained in certain passages of the charge to thejury which I have collected below :—
(a) “ There was a fairly obvious suggestion that this accused and herfami’y led rather a disorderly kind of life. We have, as I said,the evidence of this love affair with a married man with threechildren. That sort of thing, even in this Beatle age, is stilldisapproved of in some circles, but I want to tell you with all theinfluence at my command that in considering the guilt of thisaccused, in considering the ultimate problem whether sheindeed pushed that boy into the well, you must not let in allthat evidence about her character and her doings. You must notlet any of it influence your minds one whit against her; she isnot being tried for that conduct; she is being tried for some-thing which has noth'ng whatever to do with her conduct. So,it is your duty not to be influenced by anything that happensat this trial in this Court in regard to that proved conduct, oranything that you may have read outside; you must not beinfluenced one whit by such matters when it comes toconsidering whether this accused has committed the graveoffence with which she is charged.1*
(h) " Again, gentlemen, much of that evidence may perhaps not havebeen led but for the fact that this trial started with there beingin the dock this married man with whom this affair was goingon. In some vague way, gentlemen, if you feel stronglyinclined on the evidence to hold that this accused had pushed
T. 8. FERNANDO, J.—Pauline de Croos o. The Quern175
that boy into that well, yon might be tempted to say to your-• selves “ Well, we are not very positive about it but she musthave done so because of this affair; we do not know quite how,but because this affair was going on she must have pushed theboy into the well.” In that way, gentlemen, you might make .a mistake all along that the evidence about Kirambakanda andthis girl form a kind of evidence of motive. That also,gentlemen, you must not do,”
c) “ I have told you thus far that you cannot regard that as showinga motive and that you cannot regard that kind of conductor misconduct in any way unfavourable to this accusedwhen you consider whether she is guilty of this offence. Sothat thus far you cannot use that except to forget it.”
(d) “But there is one respect, and one respect only, in which theprosecution itself real y and properly relies on that evidence,namely, for the purpose of showing that this accused knewGota, and of showing, through Mrs. Kanagaratnam’s evidence,that Gota knew this accused.”
I think the direction actually given was in all the circumstancesadequate and, notwithstanding the fact that the jury was in possession ofevidence tending to show that the appellant was a girl of loose moralswhich evidence could not have been led in a case against her if she hadstood her trial alone, I am satisfied that no substantial miscarriage ofjustice has actually occurred. I shall set out later a brief summary ofthe evidence the Crown relied on to establish the charge against her.
It should not be forgotten at any stage of this appeal that there wasno misdirection of the jury on the part of the learned trial judge. Awrong deci-.ion on a question of law within the meaning of section 5 (1) ofthe Court of Criminal Appeal Ordinance may come about, of course, notonly where there has been misdirection of the jury. Even misreceptionof evidence can constitute a wrong decision on a question of law. Thetests for applying the proviso are, however, not identical in the twocases, namely, misdirection and misreception of evidence. In a casewhere misdirection of law is established, a court would ordinarily bemore unwilling to apply the proviso than in the case of a mere misreoep-tion of evidence. Even here it is pertinent to point out, as Goddard
C.J. did in Whybrow1 that in the well-known judgment of Channell J.in Cohen v. Bateman ‘ that learned judge in no way suggested that theproviso should not be applied in a case where the misdirection was on apoint of law. There are othe ' cases of the application of the provisowhere there had been a dear misdirection in the summing-up: see e.g.Oster-Rittera. It is interesting to note that in Jones and others *, theEnglish Court of Criminal Appeal, referring to the case of Britton(reported in the Solicitors*0 Journal of May 5, 1961) where the Court
(1961) 35 Cr. A. R. 141.■ (1948) 82 Or. A. R. 191.
(1909) 2 Cr. A. R. at 207.• (1961) 46 Or. A. R. at 70,
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T. 8. FERNANDO, J.—Pauline de Croos v. The Queen
Had declined to apply the proviso when there had been two separatemisdirections on important matters, taking the view that to maintain theconviction would involve applying the proviso twice over, observed :—“In our view, however, that decision is not to be regarded as layingdown a hard and fast rule that, if an appellant can establish more thanone instance of misdirection, the proviso cannot be applied. No doubtthe fact that there has been more than one instance of misdirection in asumming-up affords a strong reason why the provi o should not beapplied but, in our view, it is not conclusive. Each case falls to bedecided on its own facts, and much will depend upon the nature of themisdirection complained of. ”
Except for drawing attention to one kind of case where ordinarily theCourt will hesitate to apply the proviso to section 5 (1), we need notconcern ourselves with cases of misdirection on law for, I have alreadyemphasised, there is no such thing here. This is at best a case ofmisreception of evidence, and there is no doubt as to the test we are calledupon to apply in such a case. I am indebted to Mr. Pullenayegum fordrawing my attention to a case familiar to us in another context, viz.,Stirland v. Director of Public Prosecutions 1. In that case, ViscountSimon, L.C. indicated the following as the proper test to determinewhether ihe proviso should be applied. “ When the transcript isexamined it is evident that no reasonable jury, after a proper summing-upcould have failed to convict the appellant on the rest of the evidence to
which no objection could be taken.” “A perverse jury might
conceivably announce a verdict of acquittal in the teeth o all theevidence; but the provision that the Court of Criminal Appeal maydismiss the appeal if they consider that no substantial miscarriage ofjustice has actually occurred in convicting the accused assumes a situationwhere a reasonable jury, after being properly directed, would, on theevidence properly admissible, without doubt convict.”
Twenty-two yea* s later, in 1966, in the House of Lords again, in thecase of Commissioners of Customs and Excise v. Harz 8, Lord Morris, afterstating that there should be no replacement or abandonment of theprinciple of the approach to the proviso indicated in Stirland [supra),enunciated the test in even clearer language. Said he:—“ It is to beobserved that the test to be followed is not that of seeking to assess whatthe particular jury that heard the case would or must have done if it hadonly heard a revised version of the evidence. For the purpose of thetest the appellate court must assume a reasonable jury, and must thenask whether such a reasonable jury, hearing only the admissible evidence,could if properly directed have failed to convict.”
These are two cases of the highest possible authority, but we wereurged that they were not binding on us in spite of the fact that theterms of section 4 (1) and the proviso thereto of the (English) CriminalAppeal Act, 1907 are absolutely identical with the terms of section 5 (1)and the proviso thereto of our Court of Criminal Appeal Ordinance of
* (1944) A. C. 315.
1 (1997) A. O. at 824.
T. S. KERXAXDO. J.—Pauline >fe Croon r. The Queen
177
1938. We -were relieved from the task of considering this argument atany length by reason of the fact that counsel for the Crown drew ourattention to a Privy Council decision on appeal from our Court ofCriminal Appeal itself. In the case of The King v. Dharmasena.1, thePrivy Council, referring to Stirland’s case (supra), guided themselves bythe test there indicated by Viscount Simon and reproduced in large partby me earlier in this judgment.
After judgment on this appeal had been reserved by us, counsel for theappellant brought to our notice a recent decision of the Privy Council onappeal from the Federal Court of Malaysia, the case of Chung Kum Moeyv. Public Prosecutor for Singapore 2. The Privy Council was there con-cerned with the proviso to section CO (l) of the Court of Judicature Act interms almost similar to the proviso to section 5 (1) of our Ordinance. Thedecision is not applicable to the present appeal before us as the Malaysiancase was not one involving misreception of evidence but misdirection. Ihave already adverted to the difference between these two grounds, and
it is unnecessarv to sav more."*
« %
Mr. Chitty. for the appellant, contended that the tests applied underthe English statute should not be applied here where..unlike in England,the legislature has made provision for quashing a conviction and orderinga new trial. He contended that the upjxdlant was at least entitled to afresh trial on the ground of misreception of evidence. Our attentionwas invited to the local case of The Queen r. Nimalm>ena de Zoysa 3where the majority of the Court dismis-ed an appeal observing that theduty of the Court, in a case of improper admission of evidence is to castaside the evidence which ought not to have been admitted and thenconsider whether there still remains sufficient evidence to support theconviction. In doing so. the majority of the Court seems to have appliedthe rule embodied in section 167 of the Evidence Ordinance rather thanapply the test in Stirland's case. After stating that it has never beendoubted in this Country that, in the case of criminal trials, section 107applies to trials by jury as well as to trials by Judge alone, the Courtwent on to make the following observation :—
" Learned counsel for the appellant to whom we afforded theopportunity of addressing us on the question whether this Court wasempowered to act under section 167 did not argue that it had no powerto do so ; but lie contended that this Court should in a case whereevidence had been improperly admitted act in the same way as theCourt of Criminal Appeal in England. To accede to that contentionwould amount to ignoring section 167. It would be wrong to do so.The Court of Criminal Appeal in England has not the power of orderinga new trial; but it would appear from the following observation ofViscount Simon in the case of Stirland that even in England the Courtdoes not quash a conviction merely on the ground of misreception ofevidence.”
1 (1950) 52 N. L. R. at 487.• (1967) 2 TF. L. R. 657.
8 (1958) 60 y. L. R. 97.
PP 006137 (98/08)
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T. S. FERNANDO, J.—Pauline de Crocs v. The Queen
With respect, I do not myself see that the application of the proviso tosection 5 (1) of the Court of Criminal Appeal Ordinance leads to a resultfubstantiallv different to that which would follow from applying therule contained in section 167 of the Evidence Ordinance.
i am not unmindful of the dissenting view in Nimalasena de Zoysa’suse {supra) of Gunasekaxa J. Indeed any opinion of that learned judgeon a question affecting our criminal law and procedure is entitled toweight. Said he :—“ Therefore, in such a case as the present one, where•die inadmissible evidence could have induced the acceptance of the ad-missible evidence, the court is not in a position to say that independentlyif the inadmissible evidence there was ‘sufficient evidence to justify thedecision ’ of the jury. What this expression contemplates is not evidencewhich may or may not be true, but evidence that is demonstrably true orevidence that can be demonstrated to have been accepted by the courtof trial without being influenced by inadmissible evidence to arrive atthat finding.” While pointing out that the case now before us isdistinguishable from that of Nimalasena de Zoysa as we have not hereinadmissible evidence which could have induced the acceptance of theadmissible evidence, I must, with all respect to Gunasekara J., add thatthe test he has suggested in considering the application of section 167tppears to cast an undue burden on the prosecution.
I wish to guard myself against an impression that any kind ofadmissible evidence would suffice. A mechanical reading of the transcriptof the evidence will not do. There must be an examination of thetranscript, and that examination involves a consideration of the weightio bo attached to the evidence. It is not merety a matter of ink andoaper or of mere bulk. It is not merely a case of finding the skeleton orihe frame-work, the bare-bones, so to say. The Court must be satisfiedchat within the frame-work there is also flesh and blood of quality andaxtent which would suffice to pass the test. For myself, I would adopt!n practice the test indicated in the words of Winn L.J. in the case ofRickards1 as follows :—
“ This Court must make up its own mind whether, if the inad-aiissible evidence had not been before the jury, and if a proper directionhad been given to the jury whose mind had not been affected by anyinch inadmissible evidence, such a jury would without doubt havelonvictcu. It is not for this court to speculate what would havehappened in the trial itself, what the jury which was charged with theiecision in that case would or would not have done.”
In the case before us, where there has been no misdirection of the jury,I am satisfied that a reasonable jury whose mind had not been affectedby the inadmissible evidence would without doubt have convicted theappellant of the charge laid against her.
Sir. Chitty, stressing the additional feature in our law which permitshis Court to order a retrial, invited us, in seeking to achieve a just end,
1 {1967) 61 Cr. A. R. at 271.
T. S. FERNANDO, J.—Pauline de Crooa v. The QueenI7£
to adopt as a working rule a course of action which, he claimed, woulcnot cause injustice to anybody. As he put it, as every tribunal has tcconsider the risk of injustice, this Court should not risk that injustice ivthere is any other course available. That submission is nob withoutappeal to me, but justice has, in my opinion, to be administered in oujcourts according to law. The Courts have judicially laid down (StirlaniHarz, Dharmasena) the test to be applied in considering the applicationof the proviso to .section 5 (1) of the Court of Criminal Appeal Ordinance.The Legislature has itself formulated the test to be applied in considerinfthe proviso to section 5 (2), viz., where the Court of Criminal Appeal is o'opinion that there was evidence before the jury upon which the accuse*might reasonably* have been convicted. The two tests are obviouslydifferent, the test in the latter case being less stringent than in the forme:l am satisfied that I have here to consider the application of the previato section 5 (1). and the test I am called upon by law to apply is satisfiedNo substantial injustice has, in my opinion, actually occurred. Whenthat is the situation, the question of ordering a retrial does noiordinarily arise. It remains for me now to set out the brief summonI referred to earlier of the evidence the Crown marshalled agains*the appellant.
The deceased boy was kncv.ni to the appellant as a son of the man witiwhom she had struck up an undue familiarity or association. Th*medical evidenco established that he died on the 7th February 19C6, ancon. that day witness Charlotte Gun&wardeno who uvea on the same roatas the appellant came up to her gate at about 6 a.m. to see her husbancoff to work. At that time she saw the appellant also leave her home.ancit was unusual for her to see the latter leave home so early. At about7.10 a.m. vitnes3 Rohan, a school friend of tno deceased travelled, a»was not unusual, with the latter in the school bus that left at that timtfrom the Dehiwala junction. They both got off at Hena Road, and afthey set- off to walk towards schocl a lady smiled at the deoeased. Whetthey had gone a few yards, the lady called out to the deceased by hiishort name, Gota, and the deceased, leaving Rohan where they were,.went rn and spoke to the lady. After speaking to her, the deceasesshouted to Rohan to go along to school. Rohan saw the deceased ancthe lady go in the direction of Mount Lavinia. Rohan claimed t*identify the appellant as that lady.
Witness Gunasekere, at about 8.30 a.m. that day, dropped in to praiat St. Rita’s Church at Mount Lavinia. He saw a lady on a pew alon$with a boy. The hoy appealed to be in some distress. He therefor*went up and asked the lady whether there was anything the matter witithe child, whereupon the lady replied the chid was suffering from giddi-ness. Gunasekere paid his i espect. at certain statues and then wentalong to what is called St. Rita’s Wing in this church and then he noticedthe same lady, *< his time alone in the main body of the church. She thenlooked at him in what he described as a startled fashion. Gunasekert
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T. S. FERNANDO, J.—Pauline de Groos v. The Queen
identified the appellant as the lady who was in the church and, afterseeing a picture of the deceased boy in a newspaper, recalled this was theboy he had seen with the appellant in the church.
The deceased boy was seen in the school premises in what has beenreferred to as the interval that ends at 11 a.m. He had however notattended school classes at all that day.
The son of witness Gunasekere, a school boy named Earle, af er schoolhours had ended that day, was sitting with a friend about 2 p.m. on aparapet wall watching other boys at play. He then noticed a lady and aboy near the well in St. Rita’s Church premises. The lady inquired fromhim how deep the well was. Earle, thinking that she wanted water,offered to get her a bucket to draw some and also pointed to a water tap.He even offered to get her some water himself, but the lady did notrespond to that offer. He and his friend left the spot after some time.He identified the appellant as that lady.
Witness Chandrasiri saw a lady throw an attache case at about 3 p.m.into a shrub by the roadside. He thought this was unusual and, feelinga little curious and even, suspicious, watched what was happening andasked the lady what it was all about. The lady asked him to pick up thecase. He refused to do so thinking that there may be kittens insidewhich the lady was trying to dispose of. She then picked up the caseherself and opened it, and Chandrasiri then saw some school-books insidethat case. Chandrasiri identified the appellant as the lady who threwthat case. The Crown’s claim was that this was an abortive attempt todispose of the deceased’s case. Another witness Marshal Perera alsosaw the appellant with an attache case in her hand near about the sameplace about the same time.
Charlotte Gunawardene referred to earlier saw the appellant pass herhouse in the direction of the appellant’s own at about 3.30 p.m.
Witness Mary Alwis found an attache case inside her garden sometimebetween 4 and 5.30 p.m. that day. This case was identified as the Bchoolattache case of the deceased. Inside it Mary Alwis saw school books anda pair of sandals. The books and the sandals were also identified asthose of the deceased.
On the afternoon of the 8th of February witness Asoka Siriwardenesaw the appellant and her sister peeping into the fence close to the spotwhere the previous afternoon Mary Alwis had picked up the deceased’sattache case. When Asoka questioned the girls what they were doingthere the appellant replied they had come to pick berries.
Except for the fact that some of the witnesses were belated in comingforward, there was no apparent reason urged for any false testimony ontheir part. Many of them had not even known the appellant before theseincidents occurred. The circumstantial evidence summarised aboveconstituted a fairly strong case against the appellant, further strengthenedas it was by an absence of any effort on the part of the appellant to suggest
T. S. FERNANDO, J.— Pauline de Crow c. The Queen
181
■any innocent reason for desiring to throw away the books and sandalsand the attache case of the deceased. The evidence against the appellantbeing entirely circumstantial, I would remind myself of what, the PrivyCouncil stated in Ebert Silva v. The King 1 was the right question theCourt of Criminal Appeal has to pose for itself: “ Was there any evidenceupon which the jury could find their verdict ? ”. If there is any evidenceupon which a reasonable jury could have found a verdict of guilty, it isnot the function of the Court of Criminal Appeal, in the absence of anymisdirection by the trial judge, to enquire whether, in its own opinion,the offence is established beyond reasonable doubt . While that may bea sufficient test to be applied at this stage, it could be said that in thisparticular case the cumulative effect of the circumstantial evidence wasso compelling that a verdict of not guilty would have been almost aperverse one.
There were certain other matters raised on behalf of the appellant towhich it is my duty to advert before concluding this judgment. First,it was urged that by reason of the leading of evidence of bad moral■character of the appellant she was deterred from giving evidence herself1n explain her conduct consistently with innocence, inasmuch as she fearedthat she would thereby expose herself to further vilification of her•character. I do not see any real substance in this ground. It wouldmot have been open to counsel for the Crown to cross-examine her toestablish her bad character. It was her own counsel who first elicitedanswers indicative of her loose morals. The fear of entering the witnessbox so put forward is, in my opinion, unwarranted.
Next, it was suggested- that Police Sergeant Dissanayake, who was. called as a Crown witness, was in a position to testify that the witnessBohan, at the first opportunity he had of seeing the appellant, failed toidentify her and that Dissanayake’s evidence on the point would havegone towards discrediting Bohan’s claim that the appellant it was whowent along with the deceased towards Mount Lavinia on the morning of“the 7th February. Reference was made to a ruling of the trial judgewhile Dissanayake was being examined in chief expressed in the recordas follows :—
•**r
Court to witness.—“ In answer to the Crown Counsel you are not tosay what Rohan told you when you went to his house in QuarryRoad.”■
It would appear that the learned judge had in mind section 122 (3) of theCriminal Procedure Code. I think it was in the circumstances a propercaution to the witness. There was no fetter on the defence asking anyquestion designed to elicit through Dissanayake a contradiction of Rohan’sevidence at the trial on the point of identification. For some unaccount-able reason, counsel for the appellant at the trial made no effort to pursuethe matter when he had the opportunity to cross-examine Dissanayake.We cannot see validity in the complaint that the court gave the defence
1 (1951) 52 N. L. R. at 509.
182T. S. FERNANDO, J.—Pauline de Croos v. The Queen
no opportunity to contradict Rohan. The third and last matter relatedto certain questions put by Crown Counsel to an Inspector of Police,Perimpanayagam, called as a witness for the appellant, suggesting thatthere was a conspiracy on the part of the original investigating policeofficers to shield the appellant. Complaint was made that such a con-spiracy was not proved, and, even if proved, the appellant must not bemade to suffer prejudice by reason of something to which she has notherself been shown to be party. I am free to say that counsel appearingin a case, particularly counsel for the Crown, should avoid makingsuggestions not intended to be proved as there is always a dangerof a jury composed of laymen falling into the error that,.the suggestionis indeed being made for the Crown only because it is true. In this case,however, I am unable to agree with counsel for the appellant thatmuch of the cross-examination of Perimpanayagam was unjustified.Pirimpanayagam, on his own evidence, was assigned a very limitedtask of recording afresh Rohan’s statement in order to verify certainparticulars. Although he stated he was in Rohan’s house some two hoursputting questions to Rohan, he was unable to show satisfactorily that hehad carried out his task of recording a statement. He had in the end putdown in hi' own words certain answers given by Rohan to question^he put to him.
By way of a final appeal, Mr. Chitty referred us to the decision of themajority of this Court in Gunawardene v. The King1 that the proviso tosection 5 (1) of the Ordinance cannot properly be applied in a case of adivided verdict unless the evidence against the accused is of such acharacter as to justify the reproach that the judgment of the dissentingjurors was manifestly perverse. As I have already said above that averdict of not guilty would here have been almost a perverse one, thereis no bar to the application of the proviso here even if one were to followthis majority decision. I feel it right to add, however, that the testGratiaen J. has formulated in Gunaivardene's case (supra) is one which,with all respect to that learned Judge, I fear I would hesitate to adopt inpractice. I find myself in alignment with the dissenting judge in thatcase.
I note with interest certain observations of tin Hou'e of Lords inHdrz’s case (supra) made by Lord Morris in a somewhat analogous situa-tion, and agreed to by the other learned judges, in relation to observationsof the Court of Criminal Appeal in two earlier cases, R. v. Manning and
R.v. Johnson, to the effect that there can be no question of applying theproviso after a convict on at a second trial where the jury had disagreedat the first trial. Said Lord Morris, “ I cannot think that the merecircumstance that there has been a first trial in which the jury disagreedshould automatically preclude the application of the proviso, if there isan appeal following on conviction in a second trial. The reasons why a juryfail to agree either to convict or to acquit are in normal circumstancesnot known. No firm conclusion can ordinarily be drawn merely from
H1950) 52 N. L. R. at 144.
TAMBIAH, J.—Pauline de Croos v. The Queen
183
the fact of a disagreement. There could be cases where nearly everyoneon a jury considered that guilt was proved, and where the contrary viewwas held irrationally or perversely or possibly for discreditable reasons.Why, it may be asked, should an application of the proviso be ruled outautomatically or almost automatically in such a case.*'
I must add that, in terms of section 2 (6) of the Court of CriminalAppeal Ordinance, the Court found it convenient to pronounce separatejudgments in this case.
For reasons which I have attempted above to sot out in full, I dismissthis appeal.
Tambiah, J.—
‘Sir. Chitty, who appeared for the appellant, submitted that theCrown recklessly joined the second accused who was discharged, whichnecessitated the eliciting of evidence which otherwise would havebeen inadmissible had the case been only against the appellant. Hesubmitted that in the process, evidence of bad character had been ledwhich necessitates a re-trial.
Although the evidence against the discharged second accused (whoshall hereinafter be referred to as Kirambakanda),-is of a tenuous nature,I am not prepared to take the view that the joinder was reckless or madewith a view to lead inadmissible evidence. There was some circum-stantial evidence against Kirambakanda. There is the evidence ofNeville Amarawcera who stated that on the day the boy was drowned,during the interval the deceased boy, who was playing in the playgroundof the school, ran along a gravel road leading away from the school sayingthat he was going to meet his father. There is also evidence of closeintimacy between the appellant and Kirimbakanda; Even after thedeath of the son, Kirambakanda was seen in the house of the appellant,conversing uith her for a long time. There were also some letters of asuspicious nature between them. The learned Crown Counsel, whodrafted the indictment, perhaps thought that there was sufficientevidence against K rambakanda. With respect I agree with the rulingof the learned Trial Judge that the evidence against Kirambakanda isnot of such a cogent character as to enable a jury to convict him.
Crown Counsel led evidence to show the relationship between theappellant and the deceased boy. For this purpose it became n cessaryfor the Crown to prove that the deceased was the son of Kirambakandawhom the first accused was passionately fond of and wanted to marry.This evidence, in my view, is admissible under sections 9 and 11 of theEvidence Ordinance. If this evidence was not led the jury might havewondered why the accused shotdd kill a stranger whom she did not know.No doubt the Crown Counsel admitted that there was no evidence ofmotive. But the complete absence of motive must be distinguishedfrom no motive being proved. In order to show the relationship the
184
TAMBIAH, J.—Pauline de Croos v. The Queen
Crown Counsel, who conducted this case, led evidence to show that thefirst accused and Kirambakanda were on intimate terms but refrainedfrom asking any questions which tended to show that the accused was awoman of loose morals. The evidence of bad character complained ofwas obtained by the accused’s Counsel who put a number of questionsfrom witnesses from which answers were elicited to show that she hadaffairs with several men. Mr. Chitty, who appeared for the secondaccused at that stage, also questioned the witnesses on these lines toestablish the same fact. Presumably, these questions were asked inorder to show to the jury that the first accused was not so desparatelyin love with Kirambakanda as to desire matrimony. Kirambakandawas only one of the boy friends of the first accused. The learned TrialJudge could not have shut out this evidence because it -was relevant forthe defence. It seems to me that the accused’s Counsel, presumably oninstructions, led the evidence complained of and it is not open forMr. Chitty now to take up the position in this Court that evidence ofloose character had been led and that the trial was prejudiced.
Assuming that the Crown Counsel, u'ho conducted this case, also madehis contribution towards eliciting evidence of lax morals of the accused,.the question arises whether this evidence is of such a prejudicial natureso as to influence the minds of the jury to convict her of the offence ofmurder. The evidence showed that the accused is an unmarried girl whoentertained a number of young men. But such a disposition does nottend to show that she is capable of committing a murder. Tendency tocommit acts, of violence and lax morals belong to different categories ofbad character. The case might have been different if the evidence tendedto show that she had committed crimes of violence earlier. There arewomen with lax morals who have a gentle disposition. On the otherhand there are women with strict codes of morals who are prone to commitacts of violence.
When inadmissible evidence of bad character is led, I am of the viewthat this Court should apply the test laid down in Stirland’s Case 1in dismissing the appeal.
The proviso to section 5 (1) of the Court of Criminal Appeal Ordinancestates : “ Provided that the court may, notwithstanding that they areof opinion that the point raised in the appeal might be decided in favourof the appellant, dismiss the appeal, if they consider that no substantialmiscarriage of justice has actually occurred. ”
In interpreting the identical provisions in the corresponding Englishstatute a working rule had been set out in Stirland’s Case where ViscountSimon enunciated this rule as follows : (vide 30 Criminal Appeal Reports,at 46, 47).
“ When the transcript is examined, it is evident that no reasonablejury, after a proper summing up, could have failed to convict theappellant on the rest of the evidence to which no objection could be1 30 Criminal Appeal Reports p. 40 at 46.
TAMBIAH, J.—Pauline de Croos v. The Queen183
taken. There was, therefore, no miscarriage of justice and this is theproper test to determine whether the proviso to section 4 (1) of the
Criminal Appeal Act, 1907, should be applied A perverse
jury might conceivably announce a verdict of acquittal in the teeth ofall the evidence ; but the provision that the Co; -t of Criminal Appealmay dismiss the appeal if they consider that no substantial miscarriageof justice has actually occurred in convicting the accused, assumes asituation where a reasonable jury, after being properly directed, would,on the evidence properly admissible, without doubt convict.f’
This test was adopted in the case of Regina v. Harz and Regina v. Potoer1by Lord Morris who said :-
' It is to be observed that the test to be followed is not that of seekingto assess what the particular jury that heard the case would or musthave done if it had only heard a revised version of the evidence. Forthe purpose of the test the appellate court must assume a reasonablejury and must then ask whether such a reasonable jury hearing onlythe admissible evidence could if properly directed have failed toconvict. "
In Leslie Charles Richard's Case2 this test was again adopted byWinn, L. J. who after referring to the dictum in Stirland's case,(supra) said : (vide at p. 271).
*•* As Lord Morris of Borth-y-Gest said in his speech (at pp. 162 and309 of the respective reports), the test of whether or not the court shouldapply the proviso is the test laid down in Stirland v. D. P. P. (1944)30 Criminal Appeal Reports 40 ; (1944) A. C. 315 that this court mustmake up its own mind whether, if the inadmissible evidence had notbeen before the jury, and if a proper direction had been given to a jurywhose mind had not been affected by any such inadmissible evidence,such a jury would without doubt have convicted. It is not for thiscourt to speculate what would have happened in the trial itself, whatthe jury which was charged with the decision in that case would orwould not have done. It is not sufficient that this court itself shouldbe clear that the appellant is guilty; it has to apply the test which Ihave just enunciated and ask itself whether on the two hypothesesstated, and assuming an intelligent and reasonable jury, this courtcan itself be sure that the man would have been convicted. The factthat the chances are very greatly in favour of that having happened inthe present trial is in law beside the point. ”
The test laid down in Stirland's case (supra) was adopted by the PrivyCouncil in a Ceylon case—The King v. Dharmasena8.
After judgment was reserved in this case Mr. Chitty, after notice to theCrown, has sent me a written argument relying on the case of Chung Kum
1 (1967) 1 Appeal Caaea 760, at 824. * (1967) 51 Criminal Appeal Reports 266.
* (1950) 51 K. L. R. 481, at 487 et eeq.
186
TAMBIAH, J.—Pauline de Crooa v. The Queen
Moey v. Public Prosecutor for Singapore L In a written statement (whichI have underlined), he submits that the rule laid down in Stirland'scase was further narrowed down in Chung Kum Moey's Case and unlessthe Court of Appeal can say that on the issues of fact, it can ‘ exclude thepossibility ' of a reasonable jury finding in favour of the appellant, or in-other words, that an acquittal on the rejection of the prosecution evidencewould be perverse and unreasonable, the appeal should not be dismissed.He submitted that this involves an assessment of the credibility of zvitnessesand is therefore virtually identical with the test applied by Gunasekara J. inNimalasena de Zoysa2.
I have perused the judgment in Chung Kum Moey's case. In tha'o cv.srthere were vital misdirections by the trial judge on questions of law. Thetrial judge in that case, after taking the view that the appellant shot atthe arm of the deceased who was trying to grab a telephone when theappellant and his party had raided the deceased’s shop, took away thepossibility of a verdict of culpable homicide not amounting to murder as aresult of vital misdirections. In such a case no doubt the test laiddown in Stirland's case cannot be applied. Viscount Dilborne, afterciting the dictum of Lord Simon in Stirland's case, said :
“ On the simple facts of this case it might v. cll be said that a reason-able jury properly directed would inevitably and without doubt havereached the conclusion that the person who fired the shots was guiltyof murder. Their Lordships cannot, however, disregard the fact thatthe learned judge who heard the evidence formed the view that theaccused’s intention was only to shoot the deceased in the forearm. Theyare unable, therefore, to exclude tho possibility that a reasonable juryproperly directed would have – eaehed the same conclusion, and. if ithad, the possibility that it would not have concluded that the accusedknew that shots at the deceased’s forearm were so imminentlydangerous that they must in all probability cause death or such bodilyinjury as was likely to cause death or that the injury intended wassufficient in the ordinary course of nature to cause death. TheirLordships are therefore unable to apply the proviso. ”
Accordingly, their Lordships of the Privy Council substituted a verdictof culpable homicide not amounting to murder.
Chung Kum Moey's case is clearly distinguishable from the presentcase. In this case there is no misdirection. As was stated earlier, therewas clear and unequivocal direction by the Trial Judge that the juryshould not take into account the immoral character of the prisoner incoming to the conclusion as to whether she committed this murder. Thelearned Judge has further directed that the jury should not be influencedby any such evidence of immoral character on the part of the accused orany questions by the learned Crown Counsel suggesting that there hadbeen partiality on the part of the police. The principle laid down in thiscase has in no way whittled down the dictum of Lord Simon in Stirland's *
1 (1967) 2 W. L. R. 657.
* (1958) 60 N. L. R. 97 at 113.
TAMBIAH, J.—Pauline de Crocus v. The Queen
187
ease. No doubt the effect of the inadmissible evidence on the jury hasto be considered. But this will depend on the nature of the inadmissibleevidence. I wish to add that even if the test suggested by Gunasckara J.in Nimalasena de Zoysa's case was applied, yet any reasonable jury,properly di. ected without doubt would have convicted the accused on therest of the evidence, since the rest of the evidence is severable and hasnot been “ woven into the fabric of this caso
Mr. Chitty urged that in England there is no provision for a re-trialbut there is such provision in the Court of Criminal Appeal Ordinance ofCeylon and therefore we should not apply this test in dismissing an appealwhen inadmissible evidence has crept in. Although the House of Lordsis not one of the Courts of Ceylon, yet, its opinion regarding the construc-tion of the words in an English statute which are identical with those in aCeylon statute, has great weight in this country. This rule was laiddown in Trimble v. Hilll, and has been followed in a number of cases inCeylon. The Court of Criminal Appeal Ordinance of Coylon is based onthe English Act and the words found in the proviso to section 5 (1) ofthe Court of Criminal Appeal Ordinance are identical with section 4 (1)of the English Criminal Appeal Act of 1907. I see no reason why weshould not follow the test laid down by the House of Lords in interpretingthe identical provision.
Under section 5 (2) of the Court of Criminal Appeal Ordinance of Coylonprovision is made for a re-trial but the circumstances under which are-trial can be ordered are set out in the same section. The proviso tosection 5 (2) of the Ordinance enacts: “ Provided that the Courtof Criminal Appeal may order a new trial if they are of op nion thatthere was evidence before the jury or the judges, as the case may be,upon which the accused might reasonably have been convicted but for theirregularity upon which the appeal was allowed.” This provision hasonly to be considered where the appeal is not dismissed on the groundthat no substantial miscarriage of justice has actually occurred and yetthe Court is of opinion that there is evidence on which the jury mayreasonably convict. Prisoners who would be acquitted in England ifsubstantial miscarriage o.' justice had actually occurred as a result ofinadmissible evidence being led, will not be acquitted in Cey.’on, if thisCourt is of opinion that there is evidence before the jury or the Judge, asthe case may be, upon which the accused would have been reasonablyconvicted but for the irregularity upon which this appeal was allowed.Our Legislature while considering some of the defects in the Englishstatute and considering local conditions, has thought it fit to introducethis provision fo~ re-trial. By the introduction of this provision thewords which occur in the proviso to section 5 (1) of the Court o CriminalAppeal Ordinance are in no way affected.
»• (1879) 8 App. Casta 342.
188
TAMBIAH, J.—Pauline de Crooa v. The Queen
Mr. Chitty also referred us to the dictum of Gunasekara J. which heexpressed in his dissentient judgment in The Queen v. Nimolasena deSoysa1. In that case Gunasekara J. said :
“ In a case in which inadmissible evidence induces a jury to acceptevidence that has been properly admitted, the sufficiency of the latterto justify the decision is dependent on the former. Therefore, in sucha case as the present one, where the inadmissible evidence could haveinduced the acceptance of the admissible evidence, the court is not in aposition to say that independently of the inadmissible evidence therewas “ sufficient evidence to justify the decision ” of the jury. Whatthis expression contemplates is not evidence which may or may not betrue but evidence that is demonstrably true or evidence that can bedemonstrated to have been accepted by the court of trial without beinginfluenced by inadmissible evidence to arrive at that finding. ”
In my view' this is an overstatement of the law. The ruling in Stirland’scase appears not to have been cited or considered in that case. Had itbeen cited the learned Judge might not have expressed such a w ide view.If this test is adopted there will hardly be a case where the provision canbe applied if inadmissible evidence has crept into the record.
As stated earlier, wiien inadmissible evidence is led, one will have toconsider its nature and effect on the jury. In Stirland’s case, a suggestionthat the accused was charged with forgery which was denied was heldnot to be sufficient to have influenced the minds of the jury, whereas inRex v. Harz {supra) confessions made by the accused to customs officerswho were not authorised to receive them, were held to have influencedthe minds of the jury. In the instant case, the fact the defence for somepurpose or other elicited evidence which shows that the accused w as awoman of loose morals W'ould not have affected the minds of the jury incoming to the conclusion as to whether she committed this crime. Therewas clear and emphatic direction by the learned trial judge to disregardthe evidence complained of in this appeal, in coming to the conclusion asto whether the accused is guilty or not of the offence of which she wascharged. I am of the view that a reasonable jury with such cleardirection, without doubt would have convicted this accused on theoverwhelming evidence against the accused.
The accused did not choose to give evidence or make a statement fromthe dock. Mr. Chitty submitted that in view of the evidence of badmoral character led she was not in a position to face the witness box.But as stated earlier, her own Counsel had asked questions to prove thatshe had been friendly with a number of men. Even if she gave evidenceshe could not have denied this fact which she herself, throughher Counsel, placed before the Jury. Therefore in my view, this was nota reason as to w hy the accused had not given evidence in this case. Shecould have even made a statement from the dock explaining her conduct.Further her Counsel did not ask for a re-trial on the grounds urgedin appeal.
1 (1958) 60 N. L. 2?. 97.
TAMBIAH, J.—Pauline dt Croos o. The Queen
189
Eliminating the evidence of lax morals of the appellant, there issufficient circumstantial evidence on which the jury would have convictedthe appellant.
Charlotte Gunawardena had seen the appellant setting out from herhouse at about 6.30 a.m. on 7th February 1966. She stated that thiswas an unusual conduct on the part of the appellant who does not nor-mally get out of the house at that time. Rohan Wickremasinghe who wastravelling with the deceased boy haul seen the appellant at about 7 a.m.near the Dehiwela junction. According to his evidence he saw the firstaccused talking to the deceased boy. Thereafter both the deceased andthe appellant went in the direction of Mount Lavinia. F. R. S. Cuna-sekera saw the deceased boy in distress at the Church, when he went toSt. Rita’s Church at 8.30 a.m. The accused was seen with her armsaround the deceased boy. Gunasekera had asked the accused whethershe needed any help. He said that she appeared to be scared at hissight._
Earle Gunasekera who was a school-boy had seen the deceased boy andthe first accused near the well where the body of the deceased was found,at about 2 p.m. on 7th February 1966. The first accused asked EarleGunasekera as to whether the well was deep. He said that the well wasdeep and wanted to give her a bucket to draw water. Then he pointedout a water tap on the road.
The most crucial evidence against her consists of the tlirowing of thesuit case where the books of the deceased and his sandals were found.At about 3 p.m. on 7th February 1966, Chandrasiri had seen her throwingthis suit case. He suspected that she had thrown some kitten and heasked her as to what she threw. She then opened the bag and showedsome school books. Chandrasiri’s evidence is corroborated by MarshallPerera’s evidence who stated that he saw the lady carrying this suit case,at or about the time. She had changed her hair style perhaps to avoiddetection.
Mrs. Alwis, who was the owner of the land where the suit case was found,testified to the finding of the suit case which is a production in this case.The books of the deceased were identified by G. T. G. N. Rosalin, a schoolteacher.
The subsequent conduct of the first accused also inculpates her. Thewitnesses Vanderziel and Asoka Siriwardena had seen the first accused onthe 8th of February 1966 near the place where the suit case was found.She was seen looking over the compound of Mrs. Alwis. This evidencewas led to show that the first accused had come to see whether the suitcase was still there perhaps with the idea of removing it and throwing itaway in some other place.
This mass of evidence from impartial witnesses has been accepted bythe jury. The appellant did not give any explanation regarding herconduct in throwing the' suit case either by choo-ing to give evidence, or
.190
8IRIMANE, J.—Pauline de Croos v. The Queen
■Baking a statement from the dock. In these circumstances there is aitrong body of independent evidence which a reasonable jury with a3 oper direction could have accepted. The deceased boy died betweenl p.m. and 3 or 3.30 p.m. on 7th February 1966.
Mr. Chitty suggested that the deceased might have committed suicidejr might have accidentally fallen into the well. If that was so the con-luct of the accused in throwing the suit case containing the books andiandals of the deceased cannot be reasonably explained. Further theippellant was seen in the company of the deceased at about 2 p.m. nearshe well on the same day. Later at about 3 or 3.30 p.m. she had beenseen by two witnesses throwing the suit case into the garden ofVlrs. Alwis.
Mr. Chitty also contended that the evidence at the most only showedhat the appellant was trying to hide evidence of a crime committed bymother. But the evidence shows that the accused was seen with thedeceased by the well at about 2 p.m. on 7th February 1966. Further‘■here was no necessity for the accused to have thrown the suit case of theboy if she was trying to hide evidence of a crime committed by anotheror if the boy had died accidentally. In either event the suit case wouldhave been found near the wTell in which he was drowned, which mayfurnish evidence of either suicide or accidental death. The suggestion•of Mr. Chitty is pure speculation.
All the evidence led is consistent only with the guilt of the appellantind is inconsistent with any reasonable hypothesis of her innocence. Forthese reasons, applying the test laid down by the House of Lords inStirland's case {supra), I dismiss the appeal.
SlBIMA'NE, J.—
The appellant was found guilty of the murder of an 11-year old school■hoy by the divided verdict (6 to 1) of a jury and sentenced to death.
When the trial commenced, the appellant had to face two charges, one,jf having conspired with Kirambakanda, the 2nd accused in the case,vho was the father of the deceased, and the other, of having committedmurder in the course of that alleged conspiracy.
In support of the charges of conspiracy evidence was led to establishan association between tin appellant and the 2nd accused whichmdoubtedly would have had the effect of blackening her character, andbringing her into contempt in the eyes of the jury. The jury listened tosuch evidence for the greater part of three days and learned CrownCounsel conceded at the hearing of this appeal that the evidence of atleast three of these witnesses, and a large part of the evidence of afourth was quite irrelevant, and inadmissible against the appellant ondie amended charge of murder of which she was ultimately convicted.
In the course of the trial the learned Trial Judge found that there wasao evidence on which a verdict against the 2nd accused could reasonablyhave been brought. He, therefore, directed the jury to bring in a verdict
SIRIMANE, J.—Pauline de Croos a. The Queen
19)
of not guilty on the charges laid against the 2nd accused, who wataccordingly acquitted. The conspiracy charges then disappeared jthough they remained on the record until an amendment was made s>the close of the case for the prosecution.
Crown Counsel conceded that they had no evidence of a motivtagainst the appellant.
In the course of the argument we questioned Crown Counsel andacquainted ourselves with all the evidence that was available against tht2nd accused, and it is sufficient to say that, in my opinion, no one coulchave honed for a conviction against him on that evidence. So that th>charge of conspiracy which, in mv view, was unfair and unjust to hot)the appellant and the 2nd accused should never nave been laid, Aprosecutor should not. as a general rule, include the charge of conspiracyin an indictment, except in those exceptional' cases where the evidence iisuch that he is left with no alternative ; for, the inclusion cf this chargialways places the defence at a disadvantage in many wavu The Gourdhave (though in somewhat different circumstances’! looked upon thtinclusion of this charge with disapproval. (See Repina v. Lawson 1 ancRodrigo u. The Queen 2.) The evidence prejudicial to the appellant hadin mv view, been laid without justification..
It is true that the learned trial Judge, in the course of his charge, tolcthe jury in. very strong language that they should disregard that evi.dence. But, it is too. much to think that the minds of a lay jury coulchave completely forgotten the largo volume of evidence regarding thiappellant’s character:—and then functioned as perfect reasoningmachines. I have no doubt that prejudice must have intermingled witk.reasoning to an extent on which it is unnecessary to speculate. But tinfact that prejudice was caused is undeniable.
The prosecution, however, submitted that the appeal should be dis-missed on the application of the rule as formulated in Stirland v. Directorof Public Prosecutionss, viz., whether on the admissible evidence !*reasonable jury properly directed would, without doubt, have convictedthe appellant.
In Stirland's casethe appellant; who was charged with forgery, put hi>character in issue.’ In cross-examination the prosecutor suggested thathe had left a certain employment on being questioned about a suggestedforgery. The appellant not only denied this but added that he had, irfact, a reference from that employer. As the fhets in that case bear noresemblance to the facts here, learned Counsel for the appellant con*tended that the House of Lords had merely laid down a working rule ”(as he called it), to be followed in considering the provisions of theEnglish Statute which differs from ours in that there is no provision fo>a re-trial. He submitted that this test should not always be applied.
{i960) 1 Weekly Law Reports, 163.* (1952 66 N. L. R. 49.
• 11944) 2 A. E. R. 13.

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SIRIMANE, J.—Pauline de Croce v. The Queen
I am unable to accept this argument, and would apply the test inStir Itmd which has been followed in Regina v. Harz l, in considering thecase against the appellant here.
The test as I understand it means this : “ Is the evidence of so crediblea nature that the tainting had no effect on the decision ?” Before anAppeal Court can say that a reasonable jury properly directed wouldwithout doubt have convicted, the credibility of the evidence “ must be. demonstrable from the record ”, as Gunasekara J. said in his dissentientjudgment in The Queen v. Nimalasena de Zoysa 2. I need hardly addthat the fact that the jury which heard the prejudicial evidence hadaccepted the prosecution version is quite irrelevant, and is a factorwhich should not be taken into consideration at all, in finding an answer'to the test.
1 have considered the evidence led in the case, and applying the testas set out above, I find it quite impossible to say with confidence thatanother jury which had not heard the tainting evidence would withoutdoubt have convicted the appellant.
I shall now set out, in very broad outline, the principal evidence onwhich the jury was called upon to come to a decision. It was theprosecution case that the deceased boy had been pushed into a well bythe appellant on the afternoon of the 7th February, 1966. The casedepended on circumstantial evidence, and the prosecution set out toprove that the boy was seen in the company of the appellant at differenttimes on that day.
There was first the evidence of Rohan Wickramasinghe, a school mateof the deceased, who deposed to having seen a lady taking away thedeceased when he was on his wray to school. He identified the lady inCourt as the appellant. The body of the deceased was found in a well inthe premises of St. Rita’s Church on the morning of 8th February, 1966,and Rohan made his statement to the police shortly after that, giving adescription of the lady he had seen. He was then taken to the house ofthe appellant by Police Sergeant Dissanayake. One complaint made bythe appellant’s Counsel was that evidence of what Rohan said and didwhen the appellant was shown to him (which Counsel stated was favour-able to the appellant) was wrongly shut out at the trial. The learnedtrial Judge was apparently of the view that anything Rohan said toSergeant Dissanayake on that occasion was a statement made to apolice officer in the course of an investigation under Chapter 12 of theCriminal Procedure Code and was inadmissible under section 122, exceptfor purposes of contradiction. His order wras (page 525 of the record)that Sergeant Dissanayake should not, in answer to Crown Counsel,state in evidence what Rohan had told him in the appellant’s house. He,therefore, left it open to the defence to get out such evidence. Though,with all respect to the learned trial Judge, I am of a different view on the
1 (1967) Appeal Cases, p. 760 at p. 824.
» (1958) 60 N. L. R. 97 at p. 113.
SIRIMANE, J.—Pauline de Crooa v. The Queen
193
■question whether the statement was made in the course of tin inquiryunder Chapter 12, it is unnecessary to enter into a discussion on thecorrectness of the order, because its result was favourable to the appel-lant. Sergeant Dissanayake did not say that Rohan on being shown theappellant identified her as the person whom he had seen on the previousday. On this point the defence called Police Inspector Perimpanayagamwho recorded Rohan’s statement at a later stage on the orders of hissuperior officer. He said, in evidence, that Rohan told him that hefailed to identify the appellant as the person who led the deceased away,when she (the appellant) was shown to him at her house on the morningof 8th of February. In an effort to discredit Perimpanayagam, a vaguesuggestion of partiality was made which I have not been quite able tofollow. There was also a passage from Rohan’s evidence given beforethe Magistrate which was put in evidence by the defence (D7) where hehad stated that he did not tell the police, (presumably Perimpanayagam)that the appellant was the lady he had seen on the morning of the 7th.
There was then the evidence of one Francis Gunasekera, who said thathe had seen a lady at St. Rita’s Church with a boy on the morning of the7th February around 8.30 a.m. According to his evidence about threeweeks later, on 26.2.66, on seeing the appellant at the police station hewas convinced that she was the lady whom he had seen in Church aboutthree weeks earlier. Yet he made no statement to the police till aboutthe 20th of April, 1966, as far as one can gather from his evidence atpage 260 of the record. Belated witnesses always offer excuses for theirbelatedness. Gunasekera’s, when questioned by the learned trial Judge,was, that he was “ more concerned with his children ” and reluctant tocome forward as a witness, as witnesses in murder cases (according tohim) run the risk of getting murdered themselves. But as he appears tohave thought nothing of exposing his child Earl to this danger,— for hetook him to the police station as a witness in the case much earlier—Idoubt whether an unprejudiced jury would have found this excuseconvincing when testing his credibility.
The prosecution relied next on the evidence of this witness’ son, EarlGunasekera, a school boy attending a different school from that of thedeceased, to establish that the appellant was seen with the deceased onthe aftemoon-ef the 7th February. Earl stated that he had seen a lady(whom he identified in Court as the appellant) with the deceased boy(whom he had later identified from a photograph in a newspaper) nearthe well at St. Rita’s Church on the afternoon in question. He made hisstatement to the police sbout 3 weeks after that day. The prosecutionalso led (in rebuttal) the evidence of a Mrs. Pereira who stated that shewas not with the deceased on that day. The defence challenged thisevidence and led the evidence of a school mate who knew the deceasedwall—one Asoka Atapattu who said that he had seen the deceased onthis day at about this time in a different place in the company ofMrs. Pereira who was his (Asoka’s) private tutor. The boy said that assoon as the deceased’s body was found he informed his class teacher of
PP 006137 (98/08)
194
SIRIMANE, J-—Pauline tie Crooa v. The Queen
what he had seen and she took him to the Principal, to whom, too, herelated his story. The Principal. Mr. Wijepala, corroborated thisevidence.
This was all the evidence relating to the alleged association of theappellant with the deceased on this day, and, from what appears on therecord I am quite unable to say .that an unprejudiced jury would, withoutdoubt, have reached the conclusion on that evidence that the appellantwas with the deceased at different times on that day.
The other important evidence relied on by the prosecution related tothe finding of the school bag belonging to the deceased.
On the evenin'' of the 7th Fcbruarv, 10CG. Mrs. Alwis, found a baa' bthe fence in the backyard of her home in Dehiwala. It was subse-quently identified as the deceased’s school bag containing his schoolbooks and his pair of slippers. There is a " nellie ” tree n nr the fenceand Mrs. Alwis herself thought that some child who had come there topluck these berries had left the bag behind by mistake. She, therefore,asked two of her neighbours, Asoka Siriwardana and Lawrence Vander-zeil, to let her know if any child came in search of a school bag. Asokaand Vanderzcil gave evidence that the appellant and her younger sisterwere seen on the next day near the fence, and that Asoka saw theappellant plucking some bei’ries.
About a month later, on G.3.66, a youth by the name of Chandrasiri.who works in a biscuit factory, made a statement to the police that hehad seen a lady, identified in Court as the appellant, throw a bag similarto the one produced in the case, at some other place in Dehiwala. Onhis questioning the lady as to why she did so, it is alleged that she madesome unconvincing excuse, and when he insisted on seeing what the bagcontained, she opened it and he saw some books inside. She then gotinto a bus and went away talcing the bag with her. One Marshal Pereraalso gave evidence on this point. He said that on the afternoon of7.2.G6, while passing along the road on a bicycle, he noticed a lady(whom he identified in Cou:t as the appellant) with a bag and Chandra-siri looking at her. He also stated that Chandrasiri told him on the nextday that the lady had made an attempt to throw the bag away. Thiswitness also said in evidence that he made his statement about li monthslater.
Unless the jury had been “ conditioned ”, if I may use that term, toaccept the evidence that (ho appellant was seen with the deceased onthat day, it is doubtful whether, on the evidence set out above, a jurywould have undoubtedly drawn the inference that it was the appellantand no other who had put the bag in the place in which it was found.Even assuming that a jury would have drawn that inference—onthat fact alone—the other evidence being equivocal—would they haveundoubtedly convicted the appellant on the charge of murder? I do notthink so.
Maurice Roche Ltd. v. Port (Cargo) Carp oration
195
There ore certain other bits of evidence, e.g., some entries in theappellant’s diary, which carry little weight unless the evidence I havediscussed was accepted.
As I stated earlier, viewing the evidence as a whole, this is not a cose,in my view, where it can be said that an unprejudiced jury would,without doubt, have convicted the appellant. In the case of LeslieCharles Richardsx, following the test in Stirland's case, Winn, L.J. saidat page 271, “It is not sufficient that this Court itself should be clear
that the appellant is guilty ; it has to apply the testand ask itself
whetherassuming an intelligent and reasonable jury, this Court
can itself be sure that the man would have been convicted. Thefact that the chances are very greatly in favour of that bavinhappenedis in law beside the point.”
I think that justice demands that the appellant should be afforded anopportunity of facing the charge against her unsaddled by a heavy burdenof prejudice, which may have occasioned a miscarriage of justice.
I would quash the conviction, but acting under the proviso to section5 (2) of the Court of Criminal Appeal Ordinance, I would order a newtrial.
Appeal dismissed.
1 (1967) Criminal Appeal Reports 266.