063-NLR-NLR-V-71-S.-RATHINAM-Appellant-and-THE-QUEEN-Respondent.pdf
Raihinqm v. The Queen
270
[Court op Criminal Appeal]
1968 Present: H. N. 6. Fernando (President), T. S. Fernando, J.,and Abeyesundere, J.S. RATHINAM, Appellant, and THE QUEEN, RespondentC. C. A. No. 121 of 1967, with Application 161
8. C. 25 of 1966—M. C. Jaffna, 31328
Summing-up—Reference to a verdict which is “ not acceptable in law ”—Inadequacy ofdirection—View by jury of scene of offence—Demonstration by a witness—Dutyof Court to recall the witness on resumption of trial—Demonstration held at sceneof offence—Procedure—Criminal Procedure Code a. 238.
At the conclusion of his summing-up, the trial judge addressed the juryos follows :•—
“ Try to be unanimous in your decision ; but if you cannot be unanimous,at least bring in a 6 to 2 verdict. Any other verdict is not acceptable in law.You may now retire and consider your verdict.”
Held, that the direction, such as it was, was inadequate. The jury shouldhave been further informed as to what would be the position if they were finallydivided 4 to 3.
Where, at an inspection by judge and jury of the scene of the allegedoffence, certain places are pointed out by a witness, the witness must be recalled
: and examined on oath and cross-examined on that matter when the trial isresumed in Court on the return of the jurors.
In a prosecution for murder by shooting, a material question at the trialwas whether two witnesses who claimed to have seen the shooting could haveidentified the accused from their respective positions if the accused,'who was
> seated in a moving car, had fired at the deceased from the car. A demonstrationwas held at the scene of the shooting in order to .test the opportunity offered foridentification.
Held, that the demonstration should not have been permitted and wascapable of misleading the jury on the question of the credibility of the allegedeye-witnesses unless it was held in conditions comparable to those whichexisted at the time when the alleged offence was committed.
Ar:
PEAL against a conviction at a trial before the Supreme Court.
G. E. Chitty, Q.C., with E. R. S. R. Coomaraswamy, Eardley Perera,M. Devasagayam and A. M. Coomaraswamy (assigned), for the accused-appellant.
E. R. de Eonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult,
276
T. S. FERNANDO, J.—Rathinam v. The Queen
February 14, 1968. T. S. Fernando, J.—
The appellant (as the 1st accused) and two others (as the 2nd and3rd accused) stood their trial at the Jaffna Assizes on a charge of murderof one Subramaniam Devendram. The jury by a unanimous verdictfound the 2nd and 3rd accused not guilty, but by a divided verdict offive to two found the appellant guilty. The trial judge accordinglysentenced him to death.
Two main questions were raised before us on appeal, one of law andthe other of fact. The question of fact was that the verdict wasunreasonable ; but, having regard to the view we have formed on thequestion of law and the order we decided to make on this appeal,that a new trial be held, it becomes unnecessary to examiue the evidencein this judgment as our order implies that we are of opinion that therewas evidence upon which the appellant might reasonably have beenconvicted. The question of law was that, at a view of the scene orderedat the instance of the presiding judge, a demonstration took placebefore the judge and jury other than the kind of demonstration thatwas permissible resulting in grave prejudice to the appellant on theissue of the credibility of the alleged eye-witnesses.
Two other points raised, both of law, may also be mentioned. Thefirst of these related to a direction given by the learned irial judge asto what is an acceptable verdict. At the very end of his charge to thejury, he addressed them thus :—
“ Try to be unanimous in your decision ; but if you cannot beunanimous, at least bring in a 5 to 2 verdict. Any other verdictis not acceptable in law. You may now retire and consider yourverdict.”
It was contended on behalf of the appellant that there was misdirectionhere capable of leading the jury to conclude that if they cannot beunanimous they had to return at least a 5 to 2 verdict. . In respect ofthe appellant that was indeed the kind of verdict returned. We are freeto say that the direction, such as it was, above reproduced was inadequate.What is an acceptable verdict cannot be said to be a matter of commonknowledge on the part of jurors. It is a question on which jurors maywell be instructed by a trial judge, and where such instruction is attemptedit should be fuller than in the instant direction. They should be informedthat the returning of a legal verdict is not obligatory, and that, if theyare finally divided 4 to 3, their duty is to say to the judge on their returnthat they are unable to reach a verdict by reason of the nature of theirdivision.
The other point of law related also to something that took place atthe view of the scene. Certain places were pointed out at the sceneby the witnesses, but the witnesses were not recalled and examined onoath as to what they did nor, of course, were they permitted to be cross-examined on that matter. On the return of th^ jurors to the court and
T. S. FERNANDO, J.—Rathinam v. The Queen
277
on the resumption of the recording of evidence, the Clerk of Assizealone was examined as a witness to ascertain what took place at thetrial.' We think that the two witnesses who showed certain spots materialto the issue of their credibility should themselves have been recalledand, of course, permitted to be cross-examined. The observations madeby Lord Denning in giving the reasons of the Privy Council in the case ofTameshwar v. The Queen1 are in point and are reproduced below:—
“ By giving a demonstration (a witness) gives evidence just as muchas whon in the witness-box he describes the place in words or refersto it on a plan. Such a demonstration on the spot is more effectivethan words can ever be, because it is more readily understood. It ismore vivid, as the witness points to the very place where he stood.It is more dramatic, as he re-enacts tho scene. He will not, as a rule,go stolidly to the spot without saying a word. To make it intelligible,he will say at least “ I stood here ” or “ I did this ” and, unless heldin check?ho will start to give his evidence all over again as he rememberswith advantages what things he did that day. But however much orhowever little the witness repo«>s his evidence or improves upon it,tho fact remains that every demonstration by a witness is itself evidencein tho case. A simple pointing out of a spot is a demonstration andpart.of the evidence….”
Had there been no other and more material question of law urged onbehalf of the appellant, in spite of the technical merit in this point oflaw, we would have had no hesitation in dismissing this appeal becausewe were in no doubt that no substantial miscarriage of justice had actuallyoccurred by reason of the failure to examine in court the witnesses whoshowed the material spots.
We can now turn to the main question of law relied on by the appellant.The case for the Crown was that the deceased Devendram was shot bythe appellant who was seated in a car that moved along the road abuttingwhich the deceased was seated on the step of a boutique. Two witnesses,Kulasingham and Sharma, claimed to have identified the appellant asthe person who fired the shot. Kulasingham was himself seated on astep of the boutique very close to the deceased. Sharma was seatedon a chair behind a table placed towards the rear of the boutique.One of the material questions at the trial naturally was whether eachof these two witnesses could have identified the appellant from theirrespective positions.
It was not disputed that at the view of the scene, which could onlyhave been ordered by the learned trial judge under section 238 of theCriminal Procedure Code, the judge either ordered or permitted a carto be driven along the road while the judge and jury remained insidethe boutique in the belief, one must assume, that the jurors would therebybe assisted in their task of determining the credibility of the witnessesKulasingham and Sharma when they said that they did identify the
* (7£$7) 3 W. L. B. at 162.
278
T, S. FERNANDO, J.—Rathinam v. The Queen
appellant as the person who actually fixed. (It should be mentionedthat the Crown case was that the 2nd accused drove the car, and thatthe appellant and the 3rd accused were in the rear seat.) There is norecord in the evidence as to the nature of this demonstration nor indeedeven of the fact that any demonstration did take place. Apart fromwhat counsel has been able to tell us of the nature of the demonstration,the only reference to a demonstration of this kind is to be found inthe learned trial judge’s summing-up to-the jury. In that summing-upmuch stress was laid on what could have been gathered by the visitto the scene and all that the jury saw there, including the demonstrationwith the aid of a car being driven along the road, and at various stagesthereof, he observed :—
(а)“ You have in your mind a picture of that ” ;
(б)“ Ask yourselves whether you could have seen what he purports
to have seen from that position ” ;_
(c) “ You had the useful assistance of an inspection of the sceneand I think you ought to have no difficulty in reaching aconclusion in regard to this matter
It is unnecessary, in our opinion, to examine on this appeal the nature ofand the extent to which demonstrations are permissible at views of aplace where the offence is alleged to have been committed. That all1 demonstrations are not ruled out is apparent from decisions on corres-ponding provisions of law ; see Karamat v. The Queen1 and Tanveshwar c.The Queen (supra). We do, however, think that the actual demonstra-tion which was accepted before us as having taken place was imper-missible and, far from assisting the jury to decide upon the credibilityof the two witnesses concerned, was liable to mislead them on thatimportant issue. While the shooting was alleged to have taken placeabout 6 o’clock in the evening, the demonstration took place aboutnoon. The boutique had changed hands between the date of the offenceand the date of the visit by the jury to the scene. While this circum-stance may not have affected the question whether Kulasingham whosaid he was sitting on the step of the boutique could have identifiedthe man who shot, it could have affected the question whether the otherwitness Sharma who sat in the rear of the boutique could also haveidentified because the contents of the show-cases in the boutiquehad undergone changes by reason of the conversion of what was a motor-spares boutique to a lending library. While the car used on the date ofthe offence is said to have been an Austin Ten, there is no evidence as towhether the car used at the demonstration was similar; any differencebetween the two could affect the question as to what part or how muchof the body of the person who shot was visible to persons in the boutique.We do not know who drove the car on the occasion of the demonstration.He was not called as a witness even on the return of the jury to courtafter the view of the scene. We have no evidence as to how fast or howslow the car was driven at the demonstration. It was suggested that
1 (1956) A. O. 256.
279
SLRIMANE, J.—Caesim v. Thiagarajah
it was driven slowly. Whatever its speed at the demonstration mayhave been, there is all the difference one can imagine between the questionof what a person or persons might have seen of another who somewhatunexpectedly passes in a car and shoots and what persons who (likethe jurors) waited expectantly in the boutique for the car to appear onthe road could have seen of its occupant or occupants. To say theleast, a demonstration which was not held in comparable conditionsshould not; in our opinion, have been permitted and was capable ofmisleading the jury on the question of the credibility of the allegedeye-witnesses.
We have set but above the reason why we quashed the conviction ofand the sentence passed on the appellant and ordered his retrial on thecharge contained in the indictment.
Sent back jor retrial.