101-NLR-NLR-V-65-THE-ATTORNEY-GENERAL-Appellant-and-N.-SUPPIAH-and-another-Respondents.pdf
TAMBIAH, J.—The Attorney-General o. Suppick
477
1981Present: Tamblah, J.
THE ATTORNEY-GENERAL, Appellant, and N. SUPPIAHand another, Respondents
S. 0. 125)61—M. O. Oampola, 6388
Criminal procedure—Accusal brought before Magistrate otherwise than by summonsor warrant—Witnesses who males depositions at pre-trial stage—Shouldprosecution call all of them at the tidal ?—Criminal Procedure Code, as. 148{1) (6), 151 (2), 187 (1), 189 (1)—Evidence Ordinance, a. 138.
A -witness who is examined at the pre-trial stage when an accused personis brought before a Magistrate otherwise than on summons or warrant andwho knows nothing about the facts of the case but states only tha the producesthe accused on a charge preferred against him need not be called to giveevidence at the trial.
Appeal from an order of the Magistrate's Court, Gampola.
V. 8. A. PuUenayegum, Crown Counsel, for the Attorney-General,appellant.
No appearance for the Accused-Respondents.
Our. adv. milt.
May 24, 1961. Tasctiah, J.—
The point which arises for consideration in this case is whether awitness, who was examined at the pre-trial stage when the accused werebrought before the Magistrate otherwise than on summons or warrantand who knew nothing about the facts of the case but stated that heproduced the accused before the Magistrate on a charge preferred againstthe accused, should either be called or be tendered for cross-examinationat the trial of the accused.
In this case, the 1st and 2nd accused were charged with having volun-tarily caused hurt to one Murugiah with a battle-axe and a knife respec-tively, under Section 315 of the Penal Code. They were convictedat the first trial. On appeal, the Supreme Court set aside the orderof the Magistrate for failing to observe the provisions of section 187 (1)of the Criminal Procedure Code and the case was sent back for retrial.At the retrial, the evidence of Murugiah, the injured person, and theevidence of Senaratne, Police Constable 5333, were led before the chargeswere framed against the accused. Murugiah stated in his evidencethat the accused had stabbed him, but Constable Senaratne said thathe knew nothing about the facts of the case and that he was producingthe accused since a charge of having caused hurt to Murugiah was pre-ferred against the accused. After the evidence of these two witnesses,the accused were charged and evidence was led both £ot the prosecution
'■'m 1TAKBUJg, J.—Thai>,&W&8&
as well as for the defence. The proeeoeyoa oaSod theMumgiah, but Saaaratae, who had, give® en&mm at the gee-fetal siiiigjjpwas neither called to give evidence nor was he tendered foe epasjfc?examinatma. At the conclusion of the trial, the oounsal lor the (tMNSlijfpurporting to rely on the ruling in Perem v, Ja-skt Polite oontendad ^|^the trial was illegal as the witness Sensracne, who hacTgiven evidenceat the pre-trial stage, was neither called to giro evidence nor was hetendered for caoss-ezaanination, at the trial of the accused. The Magis-trate upheld this point and discharged the acousecl observing that" another illegality has occurred now The Attorney-General hasappealed from this order.
When an accused person is brought before Court, otherwise than onsummons or warrant, Section 187 (1) of the Criminal Procedure Codestates that the Magistrate should, after examination as required bysection 151 (2) of the Criminal Procedure Code, frame a charge againstthe accused if he is of opinion that there is sufficient ground forproceeding against the accused. For this purpose, it is incumbent on theMagistrate to forthwith examine, on oath, the person who has broughtthe accused before the Court and any other person who may be presentin Court able to speak to the facts of the case (vide section 151 (2) of theCriminal Procedure Code). These provisions were enacted to preventabuse of the process of Court and to safeguard the liberty of the subject.When proceedings are instituted under Section 148 (a), (b) and (c) ofthe Criminal Procedure Code, the Magistrate acts on the statements ofresponsible persons and he has other means of satisfying himself whetherthere is sufficient cause to proceed against an accused person. Butwhere a person is brought to Court, otherwise than on summons or warrant,the Magistrate has to satisfy himself, on the evidence led at the pre-trialstage, whether there is sufficient cause to prooeed against the accused.
A careful scrutiny of the relevant sections of the Criminal ProcedureCode shows that when an accused person is brought before the Magis-trate, otherwise than on summons or warrant, there is no provision oflaw which compels the prosecution to call all witnesses who had givenevidence at the pre-trial stage, at the trial. The procedure to be followedin Magistrates5 Courts proceedings is set out in Chapter 18 of the CriminalProcedure Code. Where an accused person pleads not guilty to a charge,the Magistrate has to receive “ all such evidence as may be producedby the prosecution or defence respectively (vide section 189 (1) ofthe Criminal Procedure Code). Section 189 (1) of the Criminal ProcedureCode makes it abundantly dear that the Magistrate is bound to receiveao much of the evidence as may be called by the prosecution or thedefenoe and the Magistrate cannot compel the prosecution or the defenoeto call any witness who has given evidence at the pre-trial stage, andwhose evidence the prosecution or the defence was not prepared tolead at the trial. There is no statutory provision requiring a witness,who had given evidence at the pre-trial stage, to testify at the trial,if such a requirement is introduced by statute or otherwise, then it
1 (19M) 61 2f. L. B. 290.
TAMT3IA H, 3.—The Attorney-General v. Suppich
479
would, in some cases, lead to consequences which may result in the denialof justice. Thus, if a witness, who gave evidence at the pre-trial stageis either dead or has become insane, and if there is a requirement of lawthat such a witness must be called or tendered for cross-examinationat the trial, it may well-nigh be impossible to proceed with such a case,although there may be other clear and cogent evidence to establish thecharge.
In the instant case, no purpose would have been served by callingthe witness Senaratne as he stated at the pre-trial stage that he hadno knowledge of the facts of the case and that he merely produced theaccused on the 15th of August 1958 before the Magistrate of Gampola.Any evidence which witness Senaratne could have given about thefacts of the case would have been hearsay. There are two reasons whyhearsay evidence is excluded at trials. Firstly, because such evidencelacks the sanction of oath, and secondly, because no opportunity forcross-examination is given to the opponent, (vide Phipson on Evidence(9th Edition) Sweet and Maxwell at pages 223 & 224). “ Lack of oathis never stressed ” says Edmund M. Morgan, one of the leading authori-ties on the Law of Evidence and the Reporter of the American LawInstitute’s Committee on Evidence, “ and unfortunate as it may be,it is now generally recognised that the oath has lost most of its efficacyas a sanction. If lack of opportunity for cross-examination is the realbasis for exclusion, as is now almost universally conceded, it must bebecause cross-examination may eliminate the imperfections in testimonylikely to mislead the trier of fact. ” (vide Modem Code of Evidence(American Law Institute—Foreword by Edmund M. Morgan- at pages36 and 37). Hence, even if Senaratne was called to give evidence atthe trial he could only have given hearsay evidence about the factsof the case and such evidence had to be excluded.
The Crown Counsel, who represented the Attorney-General, referredto the ruling in Per era v. Ja-da Police (supra) and contended that thisdecision should not be followed. This case, however, could be distin-guished from the facts of the instant case. It was held in that case that aperson who gave evidence at the pre-trial stage and who spoke to thefacts of the case, should have been recalled at the trial, or, at least, heshould have been tendered for cross-examination. The learned Judge,who decided this case, based his decision on three grounds which requirecareful examination. Firstly, he was of the view that the Magistratewould have been necessarily influenced by the evidence led at the pre-trialstage, at the trial. Secondly, he was of the view that in the case ofIsidor Fernando v. Roy Per era1 this Court took the view that the evidencerecorded under section 187 (1) of the Criminal Procedure Code could notbe utilised by the Magistrate by merely recalling the witness and tender-ing him for cross-examination. Thirdly, the learned judge held thatsection 138 of the Evidence Ordinance requires every witness who isexamined, to be subject to cross-examination, if the adverse party sodesires.
s (J347) 48 3T. L. B. 80S-
I agree with the submissions made by the Crown Counsel in this case.I hold that a witness who was called to give evidence at the pre-trialstage, and who stated that he knows nothing about the facts of the caseneed not be called to give evidence at the trial.
In the instant case, the learned Magistrate has erred in dischargingthe accused on the point raised by the counsel for the accused. I setaside the order of discharge and send the cm© back to the Magistratein order that he might deliver his order on the evidence led at thetrial.
Order set aside.
£80TAMBIAH, —Thsw. Rtippiai
The Crown. Counsel contended that the first proposition assomee i^Ha Magistrate, who is usually a trained judge and one whose nMndfifcewik'not be warped by extraneous considerations, would be prejudiced by theinformation he may have gathered at the pre-trial stage and,
such evidence which has influenced him at the pre-trialstage, mustnecessarily be tested by cross-examination. The Crown Counsel pointedout that where a Magistrate acts on a report sent under section 14B (h)of the Criminal Procedure Code, he has access to the statements in theInformation Book, but it has never been held by this Court that aMagistrate who uses the Information Book in bhiB manner and tries thecase has acted in a prejudicial manner. Magistrates, unlike jurors,contended the Crown Counsel, are trained and experienced personneland the maxim omnia praemmuntur solemniter esse acta applies to alltheir acts. Secondly, the Crown Counsel contended that the case ofIsidor Fernando v. Soy Perera (supra) laid down the proposition that awitness should be called at the trial and his evidence in chief led beforehe is subjected to cross-examination and the Magistrate, therefore,was not justified in utilising the evidence-in-chief which was led at thepre-trial stage, and the evidence elicited in cross-examination, at thetrial when such a witness was tendered for cross-examination. TheCrown Counsel further pointed out that section 138 of the EvidenceOrdinance states that any witness who is examined should be subjectto cross-examination, if the adverse party so desires. He contended thatthis section only applies to those witnesses who are called at the trialand, consequently, the accused has the right to cross-examine any suchwitness who was called. This section does not state that a witness whohad been called at a pre-trial stage, should be examined at the trial.