043-NLR-NLR-V-57-REGINA-v.-S-PINHAMY.pdf
[fx tug Co cut of CkluixaIj Appeal]
1955 Present : Basnayake, A.C.J. (President), Pulle, J., andWeerasoorlya, J.JREGIXA v. S. PIXHAAEYAppeal Xo. 102 of IO-j-j, with Application Xo. 157
S. C. 10—J/. C. Puttalam, 3,120
Evidence—Identification of a dead person by his skull—-Medical witness—Expertonly in medical matters—Evidence Ordinance, s, Jo.
Tn a trial for murder tho Judicial Medical Officer of Colombo expressed tlioopinion (lint the skull produced in the caso was that of tho deceased. Ho basedhis opinion entirely on tho examination of n superimposition of an enlargedphotograph of tho head of the deceased on a photogruph of his skull. Tiiorowas, however, no evidence that tho medical witness was an expert onidentification by super-imposition of photographs.
Held, that it was not established that identification of dead persons bysuperimijosition of photographs was a science or art within tho meaning ofsection 45 of the Evidence Ordinance. Tiro mere referenco to tho medicalwitness as “ Judicial Medical Officer, Colombo ” was insufficient for the purposeof making his evidenco relevant under section 45 of tho Evidence Ordinancein regard to matters other than these which properly fell within tho functionsof a medical officer.
llV/iiC-ss—Right of a parly to recall him—Discretion of Court—Evidence Ordinances. 13$ (■/).
The Court is not bound to permit a witness to bo recalled whenever an appli-cation is made in that behalf under section 13S (4) of tho Evidenco Ordinance,unless tho jtarty making tho application gives satisfactory reasons.
Jury—Communication between juror and witness—Duty of Court to discharge jury—
Oath of separation—Effect thereof.
A Judgo would not bo justified in discharging tho Jury merely bocauso awitness was seen conversing with a Juror, unless the conversation was improperand it is necessary in tho interests of justice to disc-hargo the Jury.
On the third day of trial it was alleged by tho accused person’s pleader thattho medical witmiss was seen talking to a Juror during the luncheon adjourmrenton the previous day. The allegation was tnado in the Judge’s Chamberswithout any application for a retrial after investigation. At the timo of thealleged conversation the witness hod finished his evidence. On the sixth dateof trial application was made to discharge tho Jury.
' Held, that 1 hero was no valid ground for discharging tho Jury, '.'
SLYII
2f. X. 1 • 32020-1,592
Evidence—Opinions of experts expressed in text books—ll'ften Counsel may read themduring address to the Jury or cross-examine an expert witness on them—vEl idenee Ordinance', is. JO, 57, GO.f'
Tho proviso to section CO of tho Evidence Ordinance does not cuablo Counselto read to tlio Jury extracts from treatises on medical jurisprudence whichwere not properly admitted in evidence in tlio course of the trial and beforeCounsel's address. Counsel i3 not entitled to read to tho Jury the opinionof an expert expressed in any treatise commonly offered for sale.unless, wherethe expert himself is dead or cannot be called as a witness, such opinion hasbeen proved by tho production of tho treatise. /*. v. JJaba (G X. L. It. 35),followed. Quaere, whether the Court could be called upon to take judicialnotice of such .opinion on application inado under section 57 of tho EvideneoOrdinance.'
Although, under section 40 of the Evideneo Ordinance, Counsel may cross-cxamino an expert witness by reading to him extracts from a treatise writ-tonby nn export, tho witness may be asked only questions which he is competentand qualified to answer.
A
XJLPPJ-jAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
G. E. Chilly, with Jl. A. Kunminyara-, A. S. Vaniga-aooriar, Day aPer era, and N, U. J. U a flamjee (Assigned), for the Accused-Appellant.
– T />. .1. Pallctniycyttui, Crown Counsel, fur tlio Attumoy-Ceneral.
Cur. udv. rail.
December 12, 1955. Basxayake, A.C.J.—
At tlic conclusion of this appeal we did Jiot announce our decisionas we wished to deliver our judgment in writing in view of the importanceof some of the points raised by learned Counsel for the appellant.
– In regard to the first-ground of appeal we do not think that the verdictis unreasonable and cannot be supported by tho evidence in the ease.There is overwhelming evidence which, if believed, points conclusively -to the’prisoner as the man who murdered the deceased Katpahan Rasiali£/fi«s -Avunasalam. -"While learned Counsel for the appellant did notdispute' Ufa t the evidence, if believed, had this offcct, he argued strenuously.that the witnesses D. 31. K. Piuichirala and Kapuru Banda Dissaiiayakcwere entirely untrustworthy and no part of their testimony should havebeen acted upon. The learned Commissioner has, however, placed beforethe Jury all tho matters that should be considered in weighing theirtestimony. The infirmities jn the evidence of tUosg witnesses arc not
of such character as to justify us in holding that a verdict based on-suchevidence is unreasonable. -The weight, to be attached to the testimonyof a witness is a matter for the Jury.–
‘ A number of points have been taken on the ground of misdirection',but it is not necessary to discuss them’all as the learned Commissionerhas dealt with the case very fairly in his charge to the Jury. In certainrespects the learned Commissioner's charge is even unduly favourableto the prisoner…..
Learned Counsel dwelt at great length on the evidence of the JudicialMedical Officer (hereinafter referred to as the medical witness), whoexpressed the opinion that the skull produced in the case was that of thedeceased, lie. based his opinion entirely on the examination of a snperim-position of an enlarged photograph of the head of the deceased on aphotograph of his skull. The pliotogrnjihic work of enlargement andsuperimposition was done by a 0. T. X). official photographer of someexperience working under the instructions of the medical witness.. Undereross-examination the medical witness stated that there was no doubtin his mind that the skull was the skull of the deceased, but oh furthercross-examination lie admitted that in superimposition of a, photographon a skull a lot depends on the skill of tho photographer and that theremight be cases ol' individuals who have very much similar skulls. Healso admitted in tho course of cross-examination that that was the firstand only case of identification by superimposition he had done. Itwas not so reliable as identification by fingerprints. He neverthelessmaintained that in this instance he had no doubt that the skull belongedto the deceased on his examination of the super-imposition.-
Learned Counsel contended that that opinion was not relevant asthere was no evidence that the medical witness was an expert on identi-fication by superimposition of photographs. Under section 45 of theEvidence Ordinance opinions of persons specially skilled in science, orart, are relevant when the Court has to form an opinion as to science,or art. It has not been established that there is a science or art ofidentification of dead persons by superimposition of photograplis. Neitherthe photographer nor the medical witness gave a detailed account ofhow tire superimposition was done, nor did the medical witness give anycogent reasons for his assertion that the skull was without doubt the skullof the deceased. When an expert is called to give evidence tire sidecalling the witness should elicit from him his qualifications and experiencein order to establish to the satisfaction of tire Court that- he is a personwho is specially skilled in the science on which he is called to give experttestimony. The record shows the qualifications of neither the medicalwitness, nor tire C. I. D. photographer, both of whom appear to havebeen called as experts on the matter of super-imposition. The merereference to the medical witness as “ J. M. O,, Colombo ”, is insufficientfor the purpose of making his evidence relevant under section 45 of theEvidence Ordinance in regard to matters other than those which'properlyfall within the functions of a medical practitioner. •— '
– . . . , • ’ ,
•' The medical witness’s evidence alone is riot conclusive "of the identity!
of the deceased. – It can only be taken as an' item in the cfcun1oC.evidekcQj
that was led to establisli his identity. It is as such that the learned Judgedirected the Jury to regard it. He pointed out that the identificationof deceased persons by the superhnposition of photographs was nota recognised science; that the opinion based on such examination wasnot infallible; that even if the superimposition was perfectly accuratethere can be no '"’absolute certainty ” that the identity was established ;and that there was a possibility of the existence of other skulls whichwould fit into the picture. The effect of all this was to remove from themind of the Jury any impression that the dogmatic assertion of themedical witness might have created. In view of the caution with whichthe Jury has been asked to treat the evidence provided by the superim-position of the photograph of the head of the deceased on his skull, wedo not think that the learned Counsel's submission t hat the .Jury lias beenmisdirected on the point can be sustained.
A point was also made- of the fac-t that the learned Commissionerrefused to allow the C. I. II. photographer to he recalled. Tins witnessgave evidence on the second date of the trial, and the application wasmade on the seventh date of the trial, which lasted ten days, after themedical witness had been recalled at the instance of the defence andcross-examined at great length. The learned Counsel who made theapplication for the recall of the C. I. 1). photographer did not give reasonsor explain why he wanted him recalled or what evidence he sought toget out of him at that stage. It was contended that the learned Judgewas bound to allow such an application under section 13S (4) of theEvidence Ordinance which enables the Court to permit a witness to berecalled either for further e.vaininntion-in-chicf or for further cross-examination.
There is nothing in the language of the section which imposes on thetrial Judge an obligation to recall a witness on the mere asking of theprosecution or the defence, nor are we able to agree with learned Counselthat the Court is bound to permit a witness to he recalled wheneveran application is made in that behalf. That section vests a discretionin the Court and that discretion is one that must be exercised on thematerial before it. A party asking for the recall of the witness mustindicate, to the trial Judge, why he wants the witness recalled, andsatisfy him that it is necessary for a just decision of the case. Wc arenot prepared to say that the learned Commissioner has improperlyexercised his discretion in this case..
It was urged on behalf of the appellant that the medical witness wasseen talking to a Juror during the lunc-hc-on adjournment on the secondday of trial and that the learned Commissioner was wrong in refusingto discharge the Jury when it was brought to his notice. At the timethe medical witness was alleged to have conversed with the Juror he hadfinished his evidence and had not been informed, and had no reason tothink, that he would be recalled. In fact the application was made onthe sixth date of trial and six days after the alleged conversation. Theofficial record in regard to this matter reads as follows :—
“ Mr. Ualasuriya brings to mj' notice that he saw Hr. P. S. Gunawar-dena, J. M. O.. Colombo, who is a witness in this case, speaking to a
juror, 31r. P. If. A. Fernando, during the luncheon interval yesterday.• He requests me to make a note of this in Chambers. He does notwant me to inquire Into this matter in open Court as he says this mightprejudice the prisoner more.
*•' I indicate to him that I am unable to entertain any applicationfor a retrial without an investigation into the charge that he is makingand satisfying myself that the conversation was improper and waslikely to prejudice a fair trial in this case. 3 hr. Bnlasuriya states that’ he docs not desire to have an investigation into this matter and there-fore lie is not asking for a retrial'
The appellant's pleader tendered no affidavits in support of his allega-tion. Even if an affidavit had been tendered we do not flunk that theabove material disclosed any valid ground for discharging the Jury,A Judge would not be justified in discharging the Jury merely becausea witness is seen conversing with a Juror. There would be no justifi-cation whatever for such a course when the witness happens, as in thisinstance, to be a witness who has no interest in the case. The dischargeof the Jury is a matter within the discretion of the J udge. That discretionhas to be exercised judicially on reliable material placed before him.
A Jury should not be discharged unless the Judge is satisfied that it isnecessary to do so in the interests of justice.
When such an allegation is made an investigation as to the improprietyof such conversation must be held if the Jury is to be discharged. For,if a Judge were to discharge a Jury, without inquiry, upon a mere alle-gation that the Juror was seen talking to a witness he would be doinggrave harm both to the witness and the Juror. Jurors are administeredan oath of separation whenever the Court adjourns. By that oathJurors undertake not to hold communication with any personother than a fellow Juror upon the subject of the trial during theirseparation.-■
In view of that oath the need for the Judge satisfying himself thatthere has been in fact an improper conversation between Juror andwitness is greater. For a discharge without inquiry may cast on theJuror an undeserved reflection that he had acted contrary to the termsof his oath. A Juror should be free to talk to anyone oil matters un-connected with the subject to the trial. It would be an interferencewith the rights of Jurors if they were to be totally debarred from con-versing with a witness under any circumstances. Nevertheless, prudencedemands that a Juror should avoid conversing in public with a witnessduring the trial. Similarly a witness should avoid conversation witha Juror in public however familiar and friendly he may be with him inprivate life. The importance attached to keeping the Jury beyond anykind of influence can be realised from the fact that in the early days in.England Jurors were kept together from the commencement of a trialtill its conclusion. But to-day we are satisfied with the safeguard ofan oath of separation. The greater is the need therefore not only toensure that the oath is observed strictly but also to make it appear thatit is so observed.
. What vo have said above should not be taken as an invitation to Jurorsto throw discretion to the winds and converse freely in public withwitnesses on subjects other than the trial.
Jurors and witnesses should be mindful of the fact that the unin-formed and uninitiated onlooker is likely to draw wrong inferences froma conversation between a witness and a Juror. For that reason Jurorsshould be extremely circumspect.
Learned Crown Counsel drew our attention to the ease of Bex v. Tiuiss 1where it was sought to have a Jury discharged on the ground that certainof the witnesses for the Crown were seen conversing with some of theJurors at a cafe during the luncheon adjournment. Darling, J., inrefusing tho application on the ground that there was nothing in theaffidavits to show that the conversation was on the subject of the trial,said—
“ It is necessary for us to consider whether what the juryman didwas of such a character as to lead us to think that there may havebeen an injustice done to the appellant in this case. It is not enoughto say that he spoke to somebody ; it is not enough to say that thejjerson to whom he spoke was a witness in the case, although thatmakes it necessary to consider the matter more carefully ”.
Learned Counsel for the appellant relied on the case of Bex v. Green 2,where a conviction was quashed on the ground that a written communi-cation, which had not been made known to the parties, had passed betweenthe Jury and the recorder while the Jury were in their room consideringthe verdict, but that decision was made on the ground that it had beensaid by the Divisional Court more than once that any communicationbetween the Jury and the Presiding Judge must be read out in Court,so that both parties, the prosecution and the defence, may know whatthe Jury are asking and what is the Judge’s answer. That decision hasno application to the present case.
It was distinguished in the subsequent case of Bex v. Furlong 3 in whichthe Court, while confirming that the proper practice is that any communi-cation from the Jury after they have retired to consider their verdict,and the Judge’s answer thereto, should be read out in open Court beforethe Jury have returned their verdict and that the Judge has a discretionwhether lie will allow Counsel or the prisoner if undefended to addresshim on the Jury’s communication, refused to quash the conviction on thoground that the communication between the Judge and the Jury afterthe Jury had retired was not read out in open Court before the verdict.This is what happened in that case. In the course of the deliberations,the Jury desired to ask a question of the learned Judge. The Judgeat that time had gone to his lodgings which were very close to the Court—just across the road. lie directed his clerk t-o go into Court and ask the
1 13 C. A. R. 177.
I960 (1) All E. R. 3S and 31 C. A. R. 33.
31 C. A. R. 79.
BASNAYAKE, A.C.J.-^Re&inay. Pinhamy175
•Jury to put their question into writing, and the Jury put their questioninto writing and handed it to the bailiff. The Judge came over to the•Court immediately after he had written his answer to the question andthe answer was taken back to the Jury. The Judge intended to announcein Court at once what the question'and answer were, but the Jury cameback to Court before ho had the opportunity.of doing so, and he acceptedtheir verdict and read out the communication thereafter.
• In the course of the argument in that case a point was made that theJudge's clerk entered the Jury room. It was found that he did not,but the Court held that even if he did it would not hare been in itselfan irregularity because the Court had always the power to allow somebodyto make a communication to the Jury if it is a communication proper tobe made and if it is made by the direction of the Cour t.
. In the subsequent case of Fromhold v. Fromhold *, which is a civilcase, it was held that there is no difference in practice between civiland criminal cases in regard to communication between Judge and Jury^and that it was the duty of the Judge to disclose the contents of anycommunication from the Jury. Although the proceedings were quashedand a retrial was ordered, the failure to make known to the parties thecommunication from the Jury was not the ground for the order.
In the case Slraffen in the course of the trial it was brought to the.notice of the . udge that a Juryman had a conversation about the case,with a person other than a fellow Juror at the Southsea Liberal Club.,
In that case the Jurr was discharged on material which had been placed;before the trial Judge, and after they were discharged an investigation,was held in open ( burfc at which the Jurors were given an opportunity,of being represented if they wished to do so.
Learned Counsel also made a point of the fact that the appellant'spleader was not permitted to refer in his address to “ medical textbooks ”and to “ the JRuxton Case ”, and that the accused was prejudiced thereby.There is no record of what exactly the pleader for the defence wanted toread to the Jury and of the ruling given by the learned Commissioner.-.Learned Counsel was unable to cite any authority in support of theproposition that Counsel is entitled to read to the Jury extracts fromtreatises on medical jurisprudence which have not been properly admittedin evidence. ' We are unable to agree with learned Counsel’s submissionthat it was permissible under the proviso to section GO of the EvidenceOrdinance to read to the Jury the opinions of experts which had not beenadmitted in evidence. The only reported decision on the point is clearlyagainst him 3. In that, case .Counsel for the defence sought to read tothe Jury passages from Taylor’s Medical Jurisprudence containing•opinions expressed there in relation to homicidal. mania." This trialJudge on objection taken by the Crown refused to allow the defence■Counsel to do so. After the trial the presiding Judge submitted forthe opinion of two Judges of this Court the question, whether he .wasright in refusing to allow Counsel to read to the Jury opinions from a
1952 W.N.27S.London Times^-23/>152..
3 Rex v. Baba'(6 JY. L. R. 35).
book which (1) had not proved to be what learned Counsel asserted itwas ; (2) nor was found to contain the opinion of an expert on homicidalmania ; (3) nor had been referred to in any way before, so that, if it didcontain opinions which were applicable to the facts of the case undertrial, there had been no opportunity for the Counsel for the Ciown to-test or discuss such opinions.
The reference was heard before MoncrieiT, A.C.J., and "Wendt, J.It was held that Counsel was not entitled to read to the Jury extracts-from any scientific treatise unless such extract had been introduced byway of evidence in the course of the trial and before Counsel’s address.We were invited by Counsel to review and overrule this decision as, he^submitted, it was wrong. "We arc unable to uphold the submissionof Counsel and we wish to state that we are in entire accord with the-ruling that Counsel or pleader is not entitled to read to the Jury theopinion of an expert expressed in any treatise commonly offered forsale unless such opinion has been proved by the production of the treatise-in a case where the expert himself is dead or cannot be called as a witness.
Learned Counsel also complained that the' appellant's pleader wasnot permitted to cross-examine the medical witness by reading to himextracts from a treatise entitled “ The Medico-Legal Aspects of the BuckBuxton Case ”. Under section 46 of the Evidence Ordinance Counselis entitled to show that an expert witness’s opinion is inconsistent with the-opinions of other experts. The learned pleader was allowed to cross-examine the medical witness on those lines. The learned Commissionerintervened only when the pleader asked the medical witness questionswhich he was not qualified to answ er. In disallowing the first of suchquestions he said—
“ I disallow- this question. If Professor Glaister says something.
whic h this witness is competent to answer, I will allow
We are unable to find in the rulings of the learned Commissioner anydeparture from the provisions of tho Evidence Ordinance. We do notthink therefore that tho complaint is justified.
Learned Counsel for the appellant also referred to tho last two para-graphs of section 57 of the Evidence Ordinance. Those two paragraphsread —
on .all matters of public history, literature, science, or art, theCourt xnay resort for its aid to appropriate books or documents ofreference. If the Court is called upon by any person to take judicialnotice of any fact, it may refuse to do so unless and until such personproduces any such book or document as it may' consider necessaryto enable it to do so ”.
It is not- necessary to discuss this provision as tho Court was notcalled upon by the appellant’s pleader at any stage of the proceedingsto take judicial notice of the opinions he attempted to read to the Jury-
Another ground of appeal argued at length was that the learned•Commissioner “failed to charge the Jury either adequately or properlv•on the bearing of police assault, duress, and influence on the caseThis ground-relates to tho evidence adduced by tho prosecution throughwitnesses who in the course of tho Police investigation had producedvarious articles which, on their testimony at tho trial, had been sold,bartered or given to them by the appellant (allegedly according to theprosecution) after the deceased had been murdered. There was evidencethat some of those articles formed tho stock-in-trade of the deceasedwho was an itinerant seller of jewellery, and that the other articles toobelonged to him. One witness, indeed, states under cross-examinationthat he had been “ mercilessly ” assaulted by tho Police and asked “ tocome out with things ” which ho did hot know, lint ho denied that anypart of tho evidence wliic-h he gave at the trial was false or that it wasinduced by tho assault. This witness also spoke to people in tho villagegenerally having been assaulted by the Police, but when tho appellant'spleader sought to enlarge on this theme the learned Commissioner inter-vened and cautioned the witness against speaking about matters whichwere not within his personal knowledge. This caution was repeated bythe learned Commissioner when the village headman was questionedin cross-examination about complaints received by him from variouspeople in the village that they had been assaulted by the Police. Theview taken by the learned Commissioner ‘seemed to have been thatevidence relating to the existence of a state of fear among the inhabitantsof the village where tho murder had been committed and which had beenbrought about by assaults or reports of assaults at the hands of thePolice was inadmissible as hearsay. Learned Counsel for the appellantcontended, on the other hand, that such evidence was relevant andadmissible as having an important bearing on tho credibility of thewitnesses who in those circumstances had come forward and made state-ments to the Police on the basis of which they were called to give evidenceat tho trial. We ai-c not satisfied, however, that this evidence wassought to be elicited at the trial on the ground of relevancy urged bylearned Counsel for the appellant at tho hearing before us. Even other-vise, at the conclusion of the case for the prosecution there was sufficientevidence on record which if believed pointed to the fact (although it-was denied by the Police officers themselves) that the Police had, in thecourse of their investigation, been guilt3’ of acts of intimidation antiassault. Tho learned Commissioner did not, in his charge to tho Jury,invite them to disregard this evidence. On the contrary he specificallyasked them to consider whether the witnesses concerned had given falseevidence as a result of fear induced by assaidts or threats of assault.
Wo arc of the opinion, therefore, that this ground fails.
For the above masons the appellant is not entitled to succeed and his-application is refused and the appeal is dismissed.
A ppeal dismissed.
Applicalion refused.