052-NLR-NLR-V-57-REGINA-v.-D.-D.-W.-WAIDYASEKERA.pdf
[In* the Court of Criminal Appeal]
1955 Present: Basnayake, A.C.J. (President), Pulle, J., and- Fernando, J..
EEG1NA t>. D. T>. W. WAID YASEKERAAppeal Xo. 46 of 1955, with Application Xo. 75S. G. 3G—M. G. Colombo South, G0,40f>
Causin'! death of woman by net dona to cause Miscarriage—Kir,cents oj the offence
Ji union of -proof—Jtirjht of accused to plead consent- of deceased—K rill cnee of
similar nets—JleU’canryEvidence Ordinance, s. to —I’rnal Code, *>-.?. SI,
303, 304, 305.
Sunrming-up—“ Seasonable doubt Quantum of direction.
Tn a prosecution under section 305 of the Penal (,'odo for causing tho
death of n woman by an act done with intent to cause miscarriage, it is notnecessary that the Crown should prove that the accused did not cause thoiniscarriago in good faith for the purpose of saving the life of the woman,'flu; accused, however, is entitled to the benefit, of arty genera) exceptionwithin tho ambit of which ho could bring himself.■
If the accused relies on the exception in seel ion SI or the Penal Codo thoburden is on him to show that the deceased expressly or impliedly gave herconsent to suffer, or take the risk of, no loss harm than death.
Tn a prosecution under section 30a of the Pena! Code thie prosecutionmav, under section 15 of the Evidence Ordinance, lead evidence tending toshow that tho accused has been guilty of criminal acts other than those coveredby tho indictment without waiting for the accused to set up a specific defencecalling for rebuttal.
A nurse who was employed under the accused gave evidence for tho prose-cution stating that during tho ten months of her service under tho accusedthere were 150 to 175 eases in which the accused had caused iniscarriago andthat in each of those cases the accused used the same instruments and resortedto tho same procedure.
Held, that (ho names of the persons on whom the operations were performedwere not necessary to make the evidence relevant.
Once the jury arc directed in unmistakable terms as to tho burden ofproof which lies on the prosecution, the Judge is under no duty to keep onrepealing that the accused should be given the benefit of any reasonable doubt.
./^.PPEAL against a conviction in a trial before the Supreme Court. .
Colvin P. tie Silva, with Jilalcolm Pereira and U. 11. Wcerasinghe, forthe accused-appellant.-
Douglas Janszc, Acting Solicitor-General, with .1. C. Jl. Ameer, CrownCounsel, and I'. S. A. Pullcnaycgum, Crown Counsel, for the Attorney-General.
Cur. atlv. vuli.
August 31, 1955. Basxavake, A.C.J.—
At the conclusion of the hearing of this ajipeal we made older dismissingit and reserved our reasons to be delivered on a later date. Wc accordinglydo so now.
The ajjpellant was indicted on the following charge :—
“ That on or about the 2nd day of June 195-4 at Bambalapitiya,in the district of Colombo within the jurisdiction of this Court youwith intent to cause the miscarriage of one Mrs. Gladys Niigera of3foratuwa, a woman with child, did insert certain instruments intoher vagina, which act caused the deatli of the said Mrs. Gladys Nugcra,and that yon have thereby committed an offence punishable undersection 305 of the Penal Code. ”
After a trial which lasted 14 days he was found guilty by a unanimousverdict of the jury and sentenced to It) years’ rigorous imprisonment.
The appellant is a registered medical practitioner, a licentiate of theRoyal College of Physicians and Surgeons (Edinburgh) and a licent iateof the Royal Faculty of Physicians and Surgeons (Glasgow). He is60 years of age and has practised his profession for 26 years. JTc rana Horsing Home in Bambalapitiya in Colombo under the business nameof “ Ascot Nursing Home ”. The deceased Mrs. Gladys Nugora, awidow v. ith five children (hereinafter referred to as the dec a sod),entered the appellant’s Nursing Home on 29th May 1954. A few daysearlier she had consulted the appellant as she had missed her periodsfor about four months. On being asked by the appellant whether shedesired to be treated as an indoor patient she expressed a desire to takesuch medicines as may be prescribed and take treatment as an outdoorpatient-. The appellant gave her a mixture and some capsules. Itwas after taking that treatment that, she sought admission to theNursing Horne. On the 29th she came accompanied by one Terrence
Fernando who falsely represented to the appellant that his name was
Silva and that the deceased was bis wife. After having entered thedeceased to the Nursing Home, Fernando left the place, and exceptfor two telephone conversations took no interest in the deceased anddid not visit her till 2nd June 1954 on which day the deceased died.
Between the date of the deceased’s admission to the Nursing Homeand the date of her death the appellant almost daily subjected her to thefollowing treatment. She was removed to the consultation room andmade to lie on a bed. All the doors and windows were closed. Thenthe appellant performed the operations which are thus described byNurse Kariyawasam.
‘■'Then lie took the speculum and inserted it into her vagina.(.Speculum PI shown to witness). After inserting that into thevagina it was withdrawn. Thereafter the doctor took the volscUum(shown P4) into his hand. After cutting the hair the doctor applied- some dettol cream on his fingers and inserted his fingers into thevagina. He took the dettol cream from a jar similar to P2. I cannotremember how many fingers were inserted into the vagina. After
introducing his fingers he withdrew them. Then lie inserted the.speculum. He rcmpved the speculum and then inserted the volseliuminto the vagina. There is a sort of a tube in the vagina and he heldthat with the volsellum. Having held at some part of the vaginawith the volsellum he inserted a dilator. He used two or three dilators.
“ After the accused held some part or portion inside the vagina•witli"this instrument, the volsellum, he introduced these three dilators.'They ycre each introduced in turn. The smallest one, that is PIS,•Was"introduced first; Then P3 was introduced—he introduced them■ftbcUnrlihg to their sizes—and then the last one he introduced wasPl 9; : Each' time these introductions were taking place, he washolding some part of the vagina with this volsellum. At the time ofthese introductions I was by the patient as one had to hold herbecause she was struggling. I held her hands with one hand and herlegs with the other. This was according to the manner in whichthe patient struggled. She screamed fairly at the time these instru-ments were introduced. One by one they were introduced and. withdrawn.- I noticed blood on each of them. The patient was notanaesthetized during this operation.
‘■'After the last of the dilators was used and was withdrawn Inoticed blood on it. After that, she was given a douche with condyswater. It was washed inside. The conch's water was poured into acan and there is a tube with a nozzle fixed on to that can and theend of the tube,'that is, the. nozzle is inserted into the vagina andwater flowed into it. After that, some cotton wool was taken andcondys water was taken into the kidney tray. I prepared that.Tl'ic accused took the cotton wool and soaked it in the condys waterand. squeezed the water out. That was done on this occasion. Then. lib held this cotton wool with the volsellum and introduced it throughtile speculum into the vagina. After the douche, the speculum wasintroduced into the vagina and through the speculum the cotton, -wool was introduced with the aid of the volsellum. Then plugs wereput in. About 5 or G such pieces of cotton was used for this plugging.Then the'patient was taken back to the ward, to her room. SheWalked on this occasion. Then medicine was given to her. ”
On 2nd June the appellant removed from the deceased the body ofa foetus minus the head. Nurse Kariyawasam describes what happenedthat'day thus :
• • c: The.doors and windows were again closed and she was asked tolie on the bed and the plugs put in the previous day were removedas before. After the extraction of the cotton wool on this occasion,the- speculum' was removed by the accused. The accused wore his; rubber gloves which were similar to Po (which is shown) and he•rubbed dettol cream, taking it from a jar like P2, on his glovedfingers arid introduced his hand into, the vagina. She was not-anaesthetized on this day too but I was holding her. Besides me,the doctor and the patient, there was nobody else. A little later,-vre took another in'. When the accused put his hand into the vagina,
I was holding the patient’s hands and legs as she was struggling.violently. Then the accused withdrew his hand and I saw a partof the child's body in his hand. It was about this much in length—indicates from the tips of her fingers up to the wrist—about 6 inches.He drojiped that into the pail which was left there for the blood toflow. He emptied his hand into that. He again introduced his handinto the vagina and withdrew it and there was only blood an his handat that time. I saw that part or portion of a child below the neckon the first occasion and I did not notice the head. On the secondoccasion, when he withdrew his hand I saw blood'in his hand. Then hewanted me to take the two new forceps from the cupboard. I took themand handed them to him. They were these two (witness identifiesP7 and PC). P7 is called the ovum forceps and PC the weightedspeculum. I did not see this accused use these two items together,that is the speetduin and the weight. I know these two form oneinstrument. I took out all those three together. I call them forceps.When I handed these to the accused, lie introduced the weightedspeculum into the vagina. At this time there was nobody else inthe room besides the three of us. When the weighted speculum wasintroduced into the vagina, there was nobody else in the room. Thiswas introduced into the vagina in this manner (shows). The weightthat, was attached to the speculum was taken off as it was dropjjingoff. These two were used together, but as the weight was droppingoff, it was removed, and after that this was put into the vagina in thismanner. At- the time this was introduced into her vagina, she wasnot anaesthetized. She cried out and struggled violently. I washolding her at the time. I found it impossible to hold her down.The accused wanted me to call in the attendant, that is, Ai^awath}-.
I called tier and she came in. The door was relocked. She alsoheld the patient on the instructions of the accused. Both of us wereholding her to prevent her struggling. Then the ovum forceps P7was introduced by this accused. When this was introduced, theweighted speculum P6 was in the vagina held in position. He heldthis with one hand and introduced the ovum forceps -with the otherwhile the two of us were holding her down. She was crying out whenP7 was introduced. These two instruments PG and P7 were alsoimmersed in hot water before they were used. When P7 was intro-duced and withdrawn, I only saw blood on it- I did not sec anypieces on it-. He introduced P7 several times and I did not see any-. tiling come out. I did not sec the head of the child at any stage beingtaken out either with the hand or with the ovum forceps P7. At. no stage did I see that. Thereafter, the vagina was douched in condys. water by the accused. Then she was dressed in kotex pad on theinstructions of the accused and she was helped on to the ward. Wepractically carried her to the ward, that is, the three or four of us.
' Ariyawathy and I were among the four. The accused also helped.
_ and she was taken to her room. ”
-■-After, the removal of the foetus the deceased became very ill and.•died .between 9 and 10 that same night- Terrence Pernando who waspresent at the time of her death left in the appellant’s car at about
11 p.m. promising to return the next morning with a coffin but never-did and it was with difficulty that his whereabouts were traced by thePolice.••
. Nurse Kariyawasam, in addition to giving the names of four otherswho had similar operations performed on them, stated that during theten months she was employed by the appellant- she attended on about-150 to 175 cases in all of which the appellant extracted foetuses. Shewas present at- everyone of those operations. In each of those she sawthe whole foetus or pieces of foetus being removed. In each of thosecases the speculum, the dilators, and the volscllum were used. Ineach of those cases the same procedure was gone through by the appellant.The vagina was plugged with cotton wool soaked in coiulys water. Insome- instances the foetus dropped by itself and in others the accusedintroduced his hand into the vagina and broxight out the foetus. Insome cases the appellant introduced the weighted speculum in ordei-to bring out the foetus.
The appellant disposed of the foetuses cither by burning them in agas incinerator which he had in his Nursing Home or by taking themin the form of parcels and tluoiving them into a river.
The post-mortem disclosed that the deceased was a well-nourishedsubject free from heart disease or any other disease. Her uterus wasenlarged to about 4 months’ pregnancy. The uterus was S’ long, 44’broad and 3" thick. There was a well marked placental site on thefront wall of the fundus, and small pieces of decomposing placenta]tissues were adhering to it. There was also some clotted blood in theutc-rinc cavity. The cervix was soft and swollen and admitted theindex finger with ease. There was an irregular circular perforation ofthe posterior wall of the uterus at the junction of the body with the.cervix about 1" in diameter, and this opening corresfioncled with thetear in the pubic peritoneum, and there was infiltration of blood intothe extra peritonial pelvic tissue in the neighbourhood of the tear.The vaginal passage contained the head of a foetus of about 4 months’gestation. The legs and trunk were missing. There was also placentaltissue and clotted blood- Death was duo to shock and haemorrhagefollowing the perforation of the pregnant uterus.
Both the peritoneum and the uterus were injured. The injury wasnecessarily caused by the introduction of some instrument.
It is not necessary to refer in detail to the other items of evidenceled by the prosecution because they have little bearing on the questionsthat arise on this appeal.
The appellant gave evidence on his behalf. He said that he admittedthe deceased on 29th May as a case of heart disease and that later hediscovered that sfie was pregnant for about 3& months and showedsigns of a threatened abortion. Later he. saw signs of an inevitableabortion and performed an operation on the deceased on the day shedied in order to evacuate her uterus as otherwise she might have died ofhaemorrhage. He dilated – her cervix using three dilators and thevolscllum and proceeded to evacuate the uterus with his finger. Hemanaged to get two legs and the trunk of the foetus out, but the head
got stuck in the uterus and after unsuccessfully trying to bring the headout with the smaller ovum forceps lie let- the head remain in the uterusas the deceased was' showing signs of fatigue. He also expected thatthe head would come out after sometime. The injury to the uterusaccording to the appellant was caused by the foetal head. He d.is-counted the theory that t-lic ovum forceps or any other instrumentcould have caused it.
There was sufficient evidence for the jury to return the verdict theydid. Learned Counsel for the appellant- therefore-sought to attack thec onviction on the ground of misdirection..
Ife referred us to a number of passages in the learned Commissioner'ssumming-up which he submitted contained misdirections. It- is suffi-cient to set out here the passages to which learned Counsel gave particularattention in the course of his argument. They are as follows :—
I do not propose to explain the section dealing with that offencewhich is named foeticide, because there is no such charge againstthe accused. But his Counsel lias put forward as a defence that theact done by the accused was done in good faith for the purpose ofsaving the life of the mother. You are, undoubtedly, entitled toconsider that defence in all its bearings, and, if you believe the accused,there is no doubt that he is entitled to an acquittal.
‘ But you will have to remember, gentlemen, that it is not sufficientfor the evidence to point out that the act-was done for the purpose ofsaving the life of the mother. It must also point to good faith. Amere statement that a person did something in good faith is notenough. I am sure that that would commend itself to you withoutanv wealth of words from me.
" You should consider this evidence in the light of the defence.
If you believe the evidence of the accused, he is entitled to be acquitted.When you assess his evidence, you have to make a large allowancefor the fact that he is charged with a grave offence and, unlike otherwitnesses, 3'ou cannot expect from him the same mental process,and you must make every allowance for his demeanour ; he might .have been nervous or hesitant, even though he is a qualified medicalpractitioner.
“ I should also remind you, gentlemen, that, when you considerhis defence, 3*011 must keep in mind that nothing is said to be doneor believed in good faith which is done or believed without due careand attention.
“ Learned Counsel for the defence, in the course of his interestingaddress to you, stated that it was the conscientious opinion of theaccused that lie had to evacuate the uterus to save the life of thewoman. You have to consider carefully whether the circumstancesarising from the performance of the operation alone would save thelife of the mother. If there were such circumstances, the law allowsthe sacrifice of one rudimentary life to save another comparativelymore valuable. That is the stated point of the law which is availecj.of in accord with common sense.
“ But of course, you have to consider the matter in its practicaladministration. What steps did the accused take ? $as theoperation a life saving work he did, and was it done in good■
“The accused knew lie was performing a voluntary illegal act,. so far as the law lays it down. He also knew he would have to Operate.You should consider his defence and lie. in a position to say whetherhis defence absolves him.- ;
“ Wliat was of primary importance was to save the life of the mother,not the foetus.■
“You must consider, gentlemen, whether this evidence supportshis defence that he acted in good faith, for the purpose of saving theLife of the woman/’.
X,earned Counsel’s submissions on the ground of misdirection maybe summarised thus :—
(а)The summing-up of the learned Commissioner might have created
in the minds of the jury the impression that the appellantadmitted that he caused ihc miscarriage.
(б)The appellant did not intend to cause a miscarriage but when he
saw that a miscarriage was inevitable took stops to evacuatethe uterus in order to save the life of the deceased.
If the appellant’s admitted acts establish that he intended to causea miscarriage then the onus is on the prosecution to provethat the miscarriage was not caused in good faith in order tosave the life of the deceased.
In making his submissions under heads (a) <fc (b) learned Counselreferred ns to certain passages in the evidence of the medical witnessescalled by the. prosecution in support of his argument that the appellant-did not intend to cause and did not cause a miscarriage. He also reliedon the evidence of the appellant which lie submitted should receive thesame consideration as those of the prosecution medical witnesses.
The learned Solicitor-General contended that there was ample evidencethat the appellant intended to and did in fact cause a miscarriage.He drew our attention to the passages in the evidence lie relied on fortho purpose of establishing his contention. They are too numerous andlengthy to admit of citation here. We are satisfied upon an examinationof those passages that there was ample material before the jury towarrant tlie conclusion implicit in their verdict that the appellant didinsert certain instruments into the vagina of the deceased with intent tocause a miscarriage.. The learned Solicitor-General further submit ted thatthe expression miscarriage in the context of section 305 should be givenits ordinary meaning of the premature expulsion of the contents of thewomb before the term of gestation is complete. He also cited thedefinition of the expression miscarriage in the Oxford Dictionary insupport of his argument. Ho contended that the appellant's ownevidence showed that he did the acts he described with intent to expela foetus before its time.
Under head (c) learned Counsel submitted that section 303 definesthe offence of “ causing miscarriage ” and that the words “ cause themiscarriage ” in section 305 must be read subject to the section whichdefines the offence of causing miscarriage. In a charge under section305 he submitted that the prosecution must prove—
that the accused did an act,
which caused the death of a woman,
with intent to cause a miscarriage, and
that the miscarriage was not caused in good faith for the purpose
of saving the life of the woman.
We are unable to uphold the interpretation learned Counsel soughtto place on section 305. Unlike section 30-f, section 305 contains nopointer to section 303, nor is there any indication in that section thatthe Legislature intended that it should be controlled by section 303.It is not essential that, in a prosecution under section 305, it should beproved that the accused caused a miscarriage. What is material is theintent to cause a miscarriage. The essential elements of an offenceunder that section, are that—
(а)the accused did any act,
(б)which caused the death of a woman with child, and•
that the act was done with intent to cause the miscarriage of thewoman.
An interpretation such as the one learned Counsel sought to place onsection 305 involves the interpolation in that section of words which donot occur in it and the recasting of the entire section. Such an inter-pretation is not warranted by the rules of interpretation and does notcommend itself to us.
In a charge under section 305 of the Penal Code, it is not necessarythat the prosecution should prove that the accused did not cause themiscarriage in good faith for the purpose of saving the life of the woman.
' The learned Commissioner’s direction that the appellant was entitledto an acquittal if he proved that he caused (he miscarriage in good faithfor the pui-j30.se of saving the life of the deceased appears to have beeninfluenced by the defence indicated at the very outset of the trial byappellant’s Counsel. It would appear from the transcript of the short-hand notes of the proceedings that learned defence Counsel held the viewthat, if the miscarriage had been caused in good faith for the purposeof saving the life of the deceased, the appellant was entitled to anacquittal. Wc are not satisfied that the appellant was in any wayprejudiced by the learned Commissioner’s direction. He did not failto indicate clearly to the jury the onus that lay on the prosecution.
The jury was at no time asked to assume that the appellant admittedthat lie caused the miscarriage..
The learned Commissioner’s direction as to the appellant’s defenceis not unfavourable to him although it might have been better if it hadbeen stated in terms of the relevant general exception. Learned Counsel
for the appellant submitted that whether his argument based on section303 succeeded or not he was entitled to the benefit of the relevant generalexception. He did not indicate precisely under which general exceptionin Chapter IV of the Penal Code ho sought to bring the appellant’s case.Wo hold that a person indicted on a charge under section 305 is entitledto the benefit of any general exception within the ambit of which hecould bring himself.
The appellant’s case was that lie did not intend to cause the deathand that the deceased had impliedly consented to undergo his treat-ment and that whatever he did was done in good faith for her benefit.
The verdict shows that the jury did not accept the appellant’s versionfor if they did they should have acquitted him in accordance with thedirection of the learned Commissioner.
The exception in section SI of the Cotie required the appellant to showthat the deceased expressly or impliedly gave- her consent, to suffer theharm caused or to take the risk of that harm—in the present case death.While the Jury might have held on the evidence adduced by the defencethat the deceased consented to be treated medically and surgically bythe appellant, there was in our own opinion scarcely any evidence tojustify a finding that she- consented to suffer or to take the risk of the harmirhich teas aclualhy caused to her.
Learned Counsel also submitted that inadmissible evidence had beenadmitted to the prejudice of the appellant. Although learned Counseldid not take exception to the admission under section 15 of the EvidenceOrdinance of evidence, of similar occurrences, lie submitted that specificevidence of each of such occurrences must be given as in the case ofthose whose names were given by Xursc Kariyawasam and that it wasnot open to the prosecution to lead evidence generally that 150 to 175similar operations were performed, while Xursc Kariyawasam was inthe appellant’s service. He therefore did not object to evidence of theeases of Jayanthi, Lcilawati, Vimala- ICumari, and Mrs. Mather, butobjected to that part of Xursc Kari_yawasam’s evidence where she saidthat during the fen months of her service, under the appellant 150 to175 similar occurrences took place. Before wc examine learned Counsel’ssubmission it will be useful to set out the evidence objected to. XurscKariyawasam said—
“J said that after the death of Mrs. Xugcra there was anotherease of extraction of foetus, that, is the case of Jayanthi on whominstruments were used.
Q. How many other eases had you attended on where theseinstruments had been used bv this accused ?
A. Many.
Q. About how many roughly ?
A. Is it where whole foetus were removed or where parts wereremoved ?
• Q. In all how many such cases did you attend on ? .
A. About 150 to 175 cases during the months I was there. Inall those cases these instruments were used and some otherinstruments were also employed.
Q.In each of those cases where you saw whole foetus or piecesof foetus being removed the speculum, the dilators, and thevolsellum were used ?
A. Yes.
To Court : I was present at every one of those eases.
“ I am the nurse who attended on all the women who were takeninto the consulting room. In each of those eases I was there. P43is supposed to be a steriliser. There was no other steriliser apartfrom this. I have never seen this steriliser being used for the purposeof sterilising instruments.
“ Yesterday I spoke about the- 150 or 175 c-ases where instrumentswere used. In each of those cases, the speculum, volsellum and■dilators were used. I also said that, in addition to these instruments,there were certain other instruments which were also used. I can pick-them out here. (Witness picks out P37, the flushing curette, andP3S the catheter.) In each of these cases, the vagina was pluggedwith cotton wool soaked in c-ondys water by the accused. In someinstances, the foetus dropped bv itself, in some instances t-lie accused- introduced his hand into the vagina and brought out the foetus ;and in some instances lie introduced the weighted speculum in orderto bring out the foetus—not- this one but what Dr. Ekanayake broughtwith him. In each of these cases, the foetus either came out or wastaken out, and in cac-h of these cases, the foetus came out after theuse of these instruments. In each of these 150 to 175 cases that Iwitnessed, it was the accused who used the instruments. All theseinstruments were used by him.”
Before learned Crown Counsel led this evidence at the trial he announcedhis intention to do so in the absence of the jury.' learned Counsel forthe appellant submitted that the evidence of similar occurrences wouldbe admissible only' if the defence is that of accident. He submittedthat his defence was not that it was an accident and objected to theevidence being led. learned Crown Counsel " then submitted thatintention was an element of the offence and cited in support of hissubmission a number of cases1 practically all of which are decisions ofthe English Courts.
1 52 JV. L. R. 457.
(IS94) A. C. 57 at 65.
{1900) K. B. 3S9, 404, 405, 424. 425.
Cr. App. Reps. 50 and 52.
Cr. App. Reps. 61 and 69.
. 13 Cr. App. Reps. 73.
{1949) A. C. IS2.
36 Cr. App. Reps. 39.
The best approach to this question would be by a consideration ofsection ]5 of the Evidence Ordinance in the first instance. That sectionreads—
When (here is a question whether an act was accidental or inten-tional, or done with a particular Inoicledge or intention, the fact thatsuch act formed part of a series of similar occurrences, in each of whichthe person doing the act was concerned is relevant
Intention to cause miscarriage is an element of the offence with whichthe appellant was charged and in his defence he denied that he intendedto cause a miscarriage. The issue of intention therefore became one ofvital importance.
Here tire question was whether the appellant did the. act which causedHie death of the deceased with the intention of causing a miscarriage.It was therefore relevant to show that the act done by the appellantin regard to the deceased was a part, of a series of similar occurrences ineach of which the appellant was the person who did the act winch causedthe miscarriage.
In resorting to English cases for the purpose of seeking an elucidationof section 15 of the Evidence Ordinance it should be borne in mind thatthe English principle and our section of the Evidence Ordinance are notthe same. The English principle is thus stated in Stephen’s Digestof the Law of Evidence (11th Edn., p. 20) :
Where there is a question whether an act was accidental or inten-tional, the fact that such act formed part, of a series of similar occur-rences, in each of which the person doing the act was concerned, isdeemed to be relevant ”.
It will be seen that section 15 of the Evidence Ordinance is wider thanthe English rule of evidence. Under our provision evidence of similaroccurrences is relevant for t he purpose of proving a particular intentionor knowledge. Judicial opinion in England 1 appears to be divided onthe question of a proper approach to tlie English rule cited above. Butthe tendency seems to be towards admitting evidence which is relevantto the issue before the jury and not to regard the fact that the evidenceis prejudicial to the accused as rendering relevant evidence inadmissible.The most recent decision on this point is the case of Hex v. La incline 2.
It is sufficient to say that under our law too the prosecution mayadduce all proper evidence tending to prove the charge against theaccused, including evidence tending to show that the accused has beenguilty of criminal acts other than those covered by the indictment without-waiting for the accused to set up a specific defence calling for rebuttal.Counsel for the appellant correctly did not take the course adopted byCounsel for the defence at the trial.
> Sims 31 Cr. App. R. 1GI (1910).
Foormo/tamcd (1919) .-I. O'. 1S2.
Frank Jlarri.« 30 Cr. App. R. 39 (1952).
St.-affcn 30 Cr. App. R. 132.
"Tendon Times August 17, 1955.
The occurrence of which evidence is given must be one in a series ofsimilar occurrences in each of which the accused was concerned. NurseKariyawasam’s evidence quoted above satisfies the requirements of thesection. The names of the persons on whom the operations. wereperformed are not necessary to make her evidence relevant. In eachof the 150 to 175 cases a miscarriage was caused and it was the appellantwho caused the miscarriage. In each of those cases he used the sameinstruments and resorted to the same procedure.
There remains one more point raised by learned Counsel for theappellant. He contended that there was no direction by the learnedCommissioner that the appellant should be given the benefit of any reason-able doubt caused by his evidence. The learned Commissioner hasmore than once indicated in the course of his summing-up that theprosecution must prove its case be3’ond reasonable doubt and that theappellantmustbegiventhebenefitofanyreasonabledoubt. _ What is more,when at the end of the summing-up, on being asked whether there yasany matter he had omitted, learned Crown Counsel invited the learnedCommissioner to direct the jury that if the evidence adduced by the appel-lant created any reasonable doubt it was their duty to acquit him,the learned Commissioner once more directed the jury on the matter.The directions on the burden of proof are ample and we do not thinkthat there is any substance in learned Counsel’s submission.
There appears to be a mistaken notion that the jury should be remindedat every turn that they should give the benefit of every reasonabledoubt to the accused. Once the jury are directed in unmistakableterms as to the bui'den of proof which lies on the prosecution, for it isin regard to it that the question of reasonable doiibt is material, theJudge is under no duty to keep on repeating that the accused shouldbe given the benefit of any reasonable doubt. The rule is that a caseis never proved if the jury is left in doubt. It is sufficient if it is madeclear to the jury that the burden of establishing the charge in theindictment is all the time on the prosecution and that they should returna verdict against the prisoner onty if upon the evidence they are convincedof the accused’s guilt. The Judge is not fettered in the use of thelanguage which he riiay choose for the purpose of this direction. Ifthe summing-up indicates that the jury have been clearly directed asto the burden and standard of proof, the accused cannot be heard tocomplain that a particular formula was not used.
The recent pronouncements of the British Court of Criminal Appealin R. v. Kritz x, R. v. Alfred Summers 2 and R. v. Hepicorth Fearnley3indicate that the tendency of the British Courts is to get away from therigid formula of words of the past and not to expatiate on what is a“reasonable doubt” and seek to explain' the difference’between a“ reasonable doubt ” and a " fanciful doubt ”.
■ Appeal dismissed.
~ 1 {1949) 2 -A.il E. 21. 206.3 36 Cr. App.' Reps. 12. ' ~
3 11055) 3 IT. L. R. 331.