073-NLR-NLR-V-43-THE-KING-v.-AIYADURAI-et-al.pdf
The King v. Aiyadurai.
289
[Court of Criminal Appeal]
1942Present; Howard C.J. (President),*Keuneman and
de Kretser JJ.THE KING v. AIYADURAI et al.
19—M. C. Mallakam, 22,965.
Evidence called by Judge—Comment by Counsel on absence of Crown witness
—Matter arising ex-improviso—Fairness to accused—Criminal Procedure
Code, s. 429.
In the course of his address to the Jury, Counsel for the defence toldthem that a certain witness, whose name appeared on the back of theindictment, had not been called and that he was entitled to ask themto draw an inference adverse to the Crown from that fact. He alsoasked the Jury to infer that Crown Counsel had not called him becausehe knew that his evidence would be inconsistent with the case for theCrown.
Held, that the Judge was justified in the circumstances in calling thewitness himself and allowing him to be cross-examined by the Counselfor the defence.
Fresh evidence called by a Judge, except upon a matter which arisesex-improviso, is irregular and will vitiate a trial unless such evidencewas not calculated to prejudice the accused.
The power given to Courts under section 429 of the Criminal ProcedureCode is not incompatible with the principle laid down by the EnglishCourts.
T
HIS was a case heard by a Judge and Jury before the first northernCircuit.
N. Nadarajah, K.C. (with him S. Nadesan and M. M. Kumarakula-singham), for all the accused, appellants.—The right of the Judge to callfresh evidence, after the close of the case for the defence, is limited tosomething arising ex-improviso—R. v. Charles No situation aroseex-improviso in the present case which could justify the calling of furtherevidence. The remarks of defending Counsel in regard to the failureof the Crown to call Aiyadurai and to the inference that could be drawnfrom it were relevant under section 114 (/) of the Evidence Ordinance.If those remarks were misleading, the learned Judge could have statedso in the summing-up. The calling of the witness, Aiyadurai, afterdefending Counsel had begun to address the Jury, was not only un-necessary but also caused serious prejudice to the accused and tended tostrengthen the case for the prosecution.
There was no proper direction as to the onus of proof or that the‘accused was entitled to the benefit of ,a reasonable doubt. See Lawrencev. The King
E. K. T. Gunasekera, C.C., for the Crown:—There are two reasonswhy R. v. Charles (supra) cannot help the appellants. Firstly, thewitness Aiyadurai was called by Court in consequence of a situationwhich arose ex-improviso. *Secondly, R. v. Charles is a decision which
may well be reconsidered. ,
(1941) 42 N. L. R. 409.
* A. /. R. 1933, P. C. 218. 13 C..L. Rec. 111.
290
HOWARD C.J.—The King v. Aiyadurai.
There is a difference between English law and our law in regard to thepoint under consideration. Our law is contained in two statutoryprovisions, viz., section 429 of the Criminal Procedure Code and section165 of the Evidence Ordinance. These two sections show that in Ceylona criminal trial preserves an “ inquisitorial ” character. See Kenny’sOutlines of Criminal Law (1936) p. 170 footnote (1) ; WoodLroffe and Ali’sLaw of Evidence (1931) p. 1044; 29 Cr. L. J. 740 ; 31 Cr. L. J. 768 ;25 Cr. L. J. 354. Even in England the dictum of Tindal C.J.,in Frost, although it was followed in Dora HarrisStanley Liddle ‘Me. Mahon1 and Norman Day *, was not invariably followed. See,for example, R. v. Crippen5; Isaac Foster ”, William Jackson 1 (Counselwas stopped by the Court).
N. Dadarajah, K.C., in reply, cited Ponniah v. Abdul Cader' andVandendriesen v. Houwa Umma".
Cur. adv. vult.
May 25, 1942. Howard C.J.—
This case involves appeals on questions of law and applications forleave to appeal under section 4 (b) of the Criminal Appeal Ordinanceby the three appellants who were convicted of voluntarily causinggrievous hurt and thereby committing offences punishable under section317 of the Penal Code, read with section 32 of the said Code. Variousgrounds have been raised by Counsel in support, both of the appeals andthe applications. Some of these grounds are without substance and wethink it is only necessary to deal in this judgment with those which arenot without merit.
Mr. Nadarajah, on behalf of the accused, has contended first of allthat the action of the learned Judge in calling, after Counsel for theaccused had commenced to address the Jury, the witness, Bryant Aiya-durai, vitiated the convictions. The circumstances in which this witnesswas callld are as follows:—The name of Bryant Aiyadurai, who was ateacher, appeared on the back of the indictment. During the cross–examination of Inspector Caldera, Crown‘Counsel stated that he was notcalling Bryant Aiyadurai. In the course of his address to the JuryCounsel for the defence told the Jury that a certain witness—Bryant—had not been called and that they were entitled to draw an inferenceadverse to the Crown case. It would appear, moreover, from the Judge'scharge to the Jury, that Counsel for the defence also stated that the Jurywould infer that Crown Counsel had not called Bryant because he knewthat Bryant’s evidence would bp inconsistent with^ the case for theCrown. After intimating to Counsel for the defence that having readthe deposition of this witness it was highly improper for him to makesuch a submission to the Jury, the learned Judge stated that he wouldhimself call Bryant Aiyadurai. He proceeded to do so and BryantAiyadurai was examined by the Judge himself and subsequentlycross-examined by Counsel for the defence.
(1927) 20 Cr. App. R■ 8G.’ (1911) 5 Cr. App. R. 255 at 205.
(1928) 21 Cr. App. R. 3.6 (1911) 6 Cr. App. R. 196.
(1933) 24 Cr. App. R. 95 at 97.•’ (1919) 14 Cr. App. R. 41.
• (1940) 27 Cr. App. R. 108 at 171.8 (1937) N. L. R. 281.
■•(1937) 39 N. L. R. 65.
HOWARD C.J.—The King v. Aiyadurai.291
In submitting that the action of the learned Judge in calling BryantAiyadurai vitiated the convictions, Mr. Nadarajah has relied on the caseof The King v. Charles'. In this case, the learned Judge called a newwitness after the case for the prosecution and the defence had beenclosed. This Court expressed its opinion that it would have been betterif the evidence of this witness had not been put before the Jury. TheCourt also held that the applicant had not been in any way prejudicednor had any injustice been done to him by the evidence of this witness.In my judgment in that case I referred to the fact that the principleson which a Judge should be guided when he has recourse to the callingof a new witness were laid down in the case of Dora Harris in which caseAvory J. cited With approval the dictum of "Tindal C.J. in Frost *.This dictum was to the effect that if any matter arises ex-improviso, whichno human ingenuity can foresee, on the part of a prisoner in a criminalcase, there was no reason why that rrjatter which arises ex-improvisomay not be answered by contrary evidence on the part of the Crown.Avory J. held that the same principles apply when a Judge calls a witness.In The King v. Charles (supra) this Court without calling for argumentfrom Crown Counsel held that the applicant had not been in any wayprejudiced. On the hearing of this appeal, however, Mr. Gunasekerahas invited our attention to various other authorities, indicating that thedictum of Tindal C.J., in Frost (supra), fettered the discretion of a Judgewithin limits that were too narrow and has not been followed in certaincases. Thus in R. v. Crippen ' Darling J., who gave the judgment ofthe Court, stated as follows: —
“ We do not feel inclined to lay down the rule in the words' ofTindal C.J., in Frost’s case above.”
After setting out the rules as laid down by Tindal C.J., Darling J.proceeds as follows: —
“ We should not put the rule in those words. In the first place,the rebutting evidence must be evidence admissible in the case.Supposing it to be admissible, it then becomes a question for theJudge at the trial to determine in his discretion whether the evidencenot having been given in chief ought to be given as rebutting the caseset up. by the defence. In coming to his decision, he should haveregard to what had been laid down in the cases cited by Mr. Tobin.The matter, however, was one within the discretion of the Judgepresiding ■ at the trial, who was of course in a much better positionthan any Court of Appeal to determine whether it was really fairto allow it to be given, and whether it did or did not expose the defenceto a disadvantage to which they ought not to be exposed. It does notappear to have been laid down in any case that, if a Judge exerciseshis discretion Jn a way different from that in which a Court of Appealwould have exercised it, that fact alone is sufficient ground for quashinga conviction. No doubt the question was one for the discretion of theJudge at the trial, who was ■ necessarily in a far better position toexercise it than the Court of Criminal Appeal could possibly be.
■ 42 N. L. R. 409.
= 20 Or. App. R. 86.
3 4 St. Tr. N. S. 86.*5 Cr. App. R. 255.
292
HOWARD C.J.—The King v. Aiyadtirai.
All we can say is this, the evidence admitted in rebuttal wasadmissible evidence, and the Lord Chief Justice saw no reason why,in fairness to the defence, it should not have been given. He hasexercised his discretion, and, even granting that we have the powerto do so, we see no reason why we should interfere with it.
But we wish to add a few words to what has been said. If it wereshown that the prosecution had done something unfair—had setwhat had been called a trap—which resulted in an injustice to theprisoner, this Court reserves to itself full power to deal with the matter.It is only necessary to say that in such a case we should probablycome to the conclusion that there had been a miscarriage of justice,and exercise the powers given to us by section 4 of the Criminal AppealAct, 1907. ' But there is no reason to suppose that anything of thatkind has taken place here.”
The principle stated in R. v. Crippen (supra) was cited with approval in
R.v. Isaac Foster1 where the Lord Chief Justice stated as follows : —
“ The calling of witnesses after the close of the defence was in thediscretion of the Judge at the trial, and that discretion must beexercised with a due regard to the interests of the defendant. If itwere shown that the prosecution had done something unfair—hadset what has been called a trap—which resulted in an injustice to theprisoner, the Court reserved to itself full power to deal with the matter.”The law was again considered in the case of R. v. Stanley Liddle' whenHewart L.C.J., in giving the judgment of the Court? gave particularconsideration to the judgment of Avory J., in R. v. Dora Harris (supra).In connection with the latter case he cited the following passage fromAvory J.’s judgment: —
“ In the circumstances, without laying down that in no case can anadditional witness be called by the Judge at the close of the trial,after the case for the defence has been closed, we are of opinion thatin this particular case the course that was adopted was irregular andwas calculated to do injustice to the appellant Harris.”
Lord Hewart then dealt with the facts in Liddle’s case and stated asfollows : —
“In the.circumstances it appears to us that neither of the conditionslaid down in the case of Harris was here fulfilled. Nothing hadsuddenly emerged which required the calling of witnesses, and thecircumstances in which the witnesses were called were such as gravelyto imperil the defence and to put the defence to an unfair disadvantage.If the same reasoning were to apply, it would have been perfectlyopen for the defendant, on the second of these,, adjourned hearingsto require a further adjournment in order that he might call, inhis turn, rebutting evidence, and so the inquiry might wander onindefinitely.
It seems to us that the course which was taken was irregular, was notrendered necessary by any emergency, and was likely to cause injusticeto the accused. In these circumstances we think that this appealmust succeed and this conviction must be quashed.”
1 6 Cr. App. R. 196.
1 21 Cr. App. R. 3.
HOWARD C.J.—The King v. Aiyadurai.
293
In R. v. McMahon1 Lord Hewart referred to his judgment in Liddle’scase and as in that case held that evidence was wrongly admitted and itwas not possible to say that injustice had not been done to the accused.The matter was again considered in the judgment of Hilbery J., inR. v. Day ’, when the conviction was quashed on the ground that thesupplementary evidence did not arise ex-improviso and it could not besaid that such evidence did not prejudice the accused. It'is unfortunatethat no reference was made in the judgments of the Court of CriminalAppeal in the cases of Dora Harrisr Liddle, McMahon and Day (supra)to the cases of Crippen and Isaac Foster (supra). Treating the casesI have cited as a comprehensive whole, we are of opinion that theyformulate the principle that fresh evidence called by a Judge ex propriomotu, unless ex-improviso, is irregular and will vitiate the trial, unless itcan be said that such evidence was not calculated to do injustice tothe accused.
Applying the principles laid down in the cases that I have cited, we areof opinion that in the circumstances of the present case nothing in the wayof a trap had been set for the accused. To use the words of Lord Hewartin Liddle’s case, something had suddenly emerged which required thecalling of Bryant. No injustice was done to the accused by the callingof this witness, nor was the defence thereby put to an unfair disadvantage.Mr. Gunasekera also contended that, even if the calling of Bryant by thelearned Judge was not within the principle laid down by the Englishdecisions, section 429 of the Criminal Procedure Code allowed a Judgein Ceylon a wider discretion in the matter. In fact it imposed on him aduty to call a witness if he considers further evidence essential to thejust decision of the case. Sectipn 429 of the Ceylon Criminal ProcedureCode follows section 540 of the Indian Criminal Procedure Code. Thatsection has been interpreted in various Indian cases. I need only mentionMaung Po Hmyin v. J. B. Bhattacharjee and Emperor3 where it was heldthat if the new evidence appears to the Court essential to the just decisionof the case, and this must depend entirely on the particular circumstancesof each case, the Court has no choice, but it bound to take the evidence.On the contrary it follows from this that, if the evidence puts the defenceat an unfair disadvantage, it is not essential to a just decision and mustbe rejected. The power given by section 429 is not therefore incompatiblewith the English rule.
The only other ground of appeal that merits attention is the complaintthat the learned Judge in his charge to the Jury did not tell the latterthat it was incumbent on the prosecution to prove the guilt of the accusedbeyond all reasonable doubt or that the accused are entitled to the benefitof any reasonable doubt. We have given careful consideration to thecharge as a whole and have come to the conclusion that, the Jury couldhave had no doubt as to the burden of proof and the evidence necessaryto discharge that burden.
For the reasons I have given the appeals and applications are dismissed.
Appeal dismissed.
2 27 Cr. App. R. 168.
1 24 Cr. App. R. 95.
2 25 Cr. Law J. 217.