S. H. SIRINIYAL, Appellant, and THE QUEEN, Respondent

084-NLR-NLR-V-70-S.-H.-SIRINIYAL-Appellant-and-THE-QUEEN-Respondent.pdf


376
Siriniyal v. The Queen
[Court of Criminal Appeal]
Present:T. S. Fernando, J. (President), Sri Skanda Rajah, J.,and Sirimane, J.S. H. SIRINIYAL, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 125 of 1964 (with Application No. 139)S. C. 46/64—M. C. Balapitiya, 40401
Evidence—Hearsay—Illegal reception—Effect—Criminal Procedure Code, a. 121.
The accused-appellant was charged with committing murder by shooting.The first information of the widow of the deceased as recorded by the police wasproduced in document form as part of the case for the Crown. The complaintcontained, inter alia, the following statement :—“ He (the accused) has onseveral occasions threatened to shoot us ”. The widow had not, in her evidence,referred to any previous threat. The evidence of previous threats by theaccused was therefore hearsay and inadmissible. There was no direction to thejury to disregard it.
Held, that, error of law having been established, the burden shifted to theCrown to satisfy the Court that a reasonable jury, had they been properlydirected, would without doubt have oonvicted the accused.
Appeal against a conviction at a trial before the Supreme Court.
G. E. Chitty, Q.C., with R. Rajasingham and M. Kanakaratnam, for theaccused-appellant.
V. S. A. Pvllenayegum, Crown Counsel, with R. Abeysuriya, CrownCounsel, for the Crown.
Cur. adv. vuU.
T. S. FERNANDO, J.—Siriniyal v. The Queen
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February 1, 1965. T. S. Fernando, J.—
By a 6 to 1 majority verdict of the jury the appellant was convicted ofthe offence of murder of a man called Leedin. On the appellant’s behalfit was argued (1) that there was non-direction amounting to misdirectionof the jury as to the manner in which an inference of guilt may be made in acase depending solely on circumstantial evidence and (2) that there wasillegal reception at the trial of hearsay evidence which could well haveturned the scale against the appellant.
In regard to the first of these two grounds of appeal, it may be mentionedthat the case was one of shooting of the deceased at night by an assailantat a distance of 50 to 60 feet from his victim. The Crown’s case in regardto identification of the assailant rested on the testimony of a single wit-ness, Meelin, the widow of the deceased. This woman stated that at about7.30 p.m. when the deceased was stooping over the edge of the verandahof her house in order to spit on to the compound a shot was heard and thedeceased was seen falling as a result of injury caused by that shot. She hadan electric torch in her hand and she flashed that torch in the direction fromwhich the shot appeared to come, and she then saw the appellant runningwith a gun in his hand in the direction of his own house.
The learned trial judge stated more than once to the jury that if they weresatisfied that Meelin identified the appellant the latter should be foundguilty of the offence of murder. Learned counsel for the appellant arguedthat identification of the appellant as he was running away was no morethan a circumstance which could have tended to incriminate him, and that,as Meelin did not claim to have seen the appellant fire at the deceased,more inferences than one could have been drawn in the case from thefact that the appellant was seen running away. He contended, therefore,that it was incumbent on the learned judge to have directed the jury as tothe manner in which circumstantial evidence should be considered before averdict of guilty can be returned. While it may be correct strictly tolabel this a case of circumstantial evidence in the technical sense that thefact in issue was dependent on an inference from another fact, we are inagreement with the argument of learned Crown Counsel that in this casethe fact in issue could have been decided with as much practical certaintyas if it had been observed by Meelin. Therefore, notwithstanding certaininfirmities and some improbability in Meelin’s evidence to which ourattention was drawn, we were unable to take the view that there was amisdirection of the jury. The first ground of appeal failed.
The reception of hearsay evidence took place in the following circum-stances. Meelin was the person who carried the first information to thepolice of the injuries caused to her husband. Her complaint as recordedby the police was produced in document form as part of the case forthe Crown, and section 121 of the Criminal Procedure Code, of course,permitted such production. This complaint was read out to the jury andit contained, inter alia, the following statement :—“ He (the appellant)
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T. S. FERNANDO, J.—Siriniyal v. The Queen
has on several occasions threatened to shoot us Meelin had not in herevidence (which had been completed before the production of the docu-ment which was made only when the Inspector of Police gave evidence)referred to any previous threat either to shoot or injure in any other way.No attempt was made to recall Meelin in an effort to prove the truth of thisstatement. The evidence of previous threats by the appellant to shootwas therefore hearsay and inadmissible. It was therefore patent thatthere was error of law in the conduct of the trial.
It was not possible for us to accede to the argument of Crown Counselthat the jurors were hardly likely to have remembered this bit of evidence.A striking example of the powers of jurors to recollect statements madein evidence is to be found in the reported case of Ivor Stephen Parker1.That was also a case where certain inadmissible evidence had been givenat the trial. The trial judge had not even heard the evidence in questionand, when it was brought to his notice by a juror at the conclusion of hissumming-up, he directed the jury not to attach any weight at all to it.In regard to this, Lord Parker, L.C.J., stated in the Court of CriminalAppeal :
“ Whether a direction of this sort will in any particular case cure thewrongful admission of evidence must, in the opinion of the court,be one of degree. There may be many cases where the inadmissibleevidence is of such little weight or is liable to create so little prejudicethat it would be right and proper that the matter should be dealt withby a direction to the jury. On the other hand, there are other caseswhere the inadmissible evidence is so prejudicial and so likely toinfluence the jury in arriving at their verdict that the court isreluctantly forced to the conclusion that the matter cannot be left toa direction, but must be dealt with by discharging the jury.”
The Court of Criminal Appeal there adopted the test formulated by LordNormand in the Privy Council in the case of Teper v. JR 2 in these words :—** The test is whether on a fair consideration of the whole proceedings theBoard must hold that there is a probability that the improper admission ofhearsay evidence turned the scale against the appellant ”.
In the case before us there was not even a direction to the jury todisregard the evidence wrongly admitted. Error of law having beenestablished, the burden shifted to the Crown to satisfy us that areasonable jury, had they been properly directed, would without doubthave convicted the appellant. We were unable to say that theCrown has so satisfied us. Indeed, we were unable also to overlookthe probability of the evidence of previous threats by the appellant toshoot having turned the scale against him to the point of the jurygetting some confirmation thereby of the evidence of identificationgiven by Meelin. Upholding the second ground of appeal, we allowedthe appeal and quashed the conviction of the appellant.
1 (I960) 45 Or. A. R. J.
Conviction quashed.1 (1952) A. C. 492.