041-NLR-NLR-V-42-THE-KING-v.ANA-SHERIFF.pdf
The King v. Ana Sheriff.
169
[Court of Criminal Appeal.]
1941 Present: Howard CJ, Moseley SJJM Hearne, Kennemaa
and Cannon JJ.
THE KING v. ANA SHERIFF.
7—M. C. Puttalam, 27,146.
Evidence—Charge of rape—Absence of corroboration of complainant’s evidence—Failure of Judge to warn the Jury—Misdirection—Nature of corro-boration required.
Where in a charge of rape there is no corroboration of the evidenceof the complainant, the Jury should be warned that it is not safe toconvict on such uncorroborated testimony. In the absence of such awarning, the conviction will be quashed.
Where, having regard to all the facts of the case, there is substantialcorroboration of the evidence .of the complainant, no warning is required.
The evidence in corroboration must be independent testimony, whichaffects the accused by connecting or tending to connect him with thecrime.
A
PPEAL from a conviction by a Judge and jury before the 4thWestern Circuit.
J. R. Jayawardene (with him H. A. Koattegoda), for the third accused,appellant.—The appellant who is the third accused has been convictedof rape and of abduction. The conviction for rape depends on theevidence of the complainant alone. There is no corroboration. In casesof rape and other sexual offences, the Jury may convict on the uncorro-borated evidence of the prosecutrix, but the Judge should warn them thatit is dangerous to do so—R. v. Crocker1; Vol. 9 of Halsbury’s Laws ofEngland (2nd ed.), p. 224. No warning was given in this case. Theleading case on the law relating to corroboration is R. v. Baskerville *."See ; also 9 Halsbury p. 223. It cannot be said that the evidence of thesecond accused implicating the appellant constituted corroboration.In Ceylon, where sworn evidence is given by a co-accused, the Juryshould be warned that they should be very careful in acting upon suchevidence—Rex v. Ukku Banda et aL‘ The trial Judge failed to give suchwarning.
[Hearne J.—I see in the abduction itself very strong corroboration.Does not active participation in the abduction in circumstances which hehas not troubled to explain connect the appellant with the commissionof rape, which the complainant speaks of, and amount to corroboration?]Apart from the complainant’s, the only evidence implicating the thirdaccused (appellant) was that of the second accused. It was the duty ofthe Judge to have warned the Jury about acting on his evidence.
[Ketjneman J.—Does the charge of abduction require corroborationlike the charge of rape?]
I cannot go so far as to say that it does.
1 17 Cr. App. R. 46.* (1916) 2 K. B. 658.
* (1923) 24 N. L. R. 827.170HOWARD CJ.—The King v. Ana Sheriff.
J. W. R. Hangakoon, K.C., A.-G. (with him M. F. S. Pulle, C.C.),for the Crown.—The charge of abduction is clearly established. Whereit is alleged that rape was committed after abduction the question whetherthe evidence as to the abduction is corroboration of the evidence of theprosecutrix that rape was committed on her will depend upon the facts ofeach particular case. It is submitted that the evidence of abduction is,'in the circumstances of this case, strong corroboration of the evidence ofthe prosecutrix that rape was committed on her. It is inconceivablefor what purpose other than that of having illicit intercourse theprosecutrix, a Sinhalese girl aged about 20 years, was abducted on thenight in question by three young Moormen.
In the case of a sexual offence the corroboration required is suchcorroboration of the story of the prosecutrix as tends to prove that theaccused has committed the offence—Henry Rose The evidence ofpreparation to commit the offence would be sufficient corroborationof the prosecutrix’s evidence of rape. In the present case where theevents have moved rapidly it would be unnatural to divide the story ofthe prosecutrix into two parts and to ask for separate corroboration of eachpart. The whole story stands or falls. If the most vital part of thestory, namely, that of abduction is corroborated, then the story of rapeis necessarily corroborated and the learned trial Judge’s charge to theJury on this point was correct.
Apart from the evidence of abduction the evidence of the secondaccused provides sufficient corroboration. His evidence clearly estab-lishes that the girl was removed for the purpose of sexual intercourseand leaves no room for doubt that the first and third accused hadpossession! of the girl after she had been taken to the house at Puttalam.The circumstances under which, according to the evidence of the secondaccused, the acts of sexual intercourse must have taken place pointclearly to the absence of consent on the part of the girl.
It was not necessary for the Judge to give the warning contemplatedin Rex v. XJkku Banda et al. (supra) because the second accused was notcalled as a witness for the prosecution and because he was called by thedefence to give evidence on behalf of all the accused. The fact that thesecond accused was called was an invitation to the Jury that his evidenceshould be accepted on behalf of the accused. Further, neither the firstaccused nor the third accused challenged the evidence of the secondaccused concerning the part played by him and his co-accused in theevents of the night in question. Rex v. Ukku Banda et al. (supra) isclearly distinguishable because in that case the evidence in respect ofwhich the Jury had to be warned was that of an accused against acoaccused who was separately defended.
cur■ adv. wilt.
February 5, 1941. Howard C.J.—
This is an appeal by the third accused from his conviction of abductionof one Punchi Menika in order that she may be forced to illicit intercoursein contravention of section 357 of the Penal Code and two charges of rapeon the said Punchi Menika in contravention of section 364 of the PenalCode. Counsel for the appellant has contended that, inasmuch as the
» 18 Cr. App. R.141.
HOWARD CJ.—The King v. A no Sheriff.
171
learned Judge did not warn the Jury that it was unsafe to convict on theuncorroborated testimony of Punchi Menika, the convictions for rapecannot be maintained. It would appear that no such warning was given.We agree that where there is no corroboration such a warning should begiven. This is a rule of practice equivalent to a rule of law and, in theabsence of such a warning by the Judge, the conviction will be quashed:
R.v. Tate In that case the Lord Chief Justice stated that the convictionwould not have been quashed if there was substantial corroboration,looking at the whole of the facts in the case. If, therefore, there iscorroboration of a substantial character the warning is not requiredand we are not aware of any authority for the contrary proposition.The only point, therefore, that arises for consideration is whether in thiscase there was what amounts in law to corroboration. This matter wasexhaustively discussed in the judgment of Lord Reading L.C.J., in Rex v.Baskerville *. In this case the question is one as to corroboration ofthe complainant’s story, whereas in Rex v. Baskerville (supra) it was oneas to corroboration of the story of an accomplice. In Rex v. Crocker •Hewart L.C.J., after stating the law laid down in Rex v. Baskeville(supra) regarding the evidence of accomplices, went on to say that, theCourt could not accept the contention that the evidence of a girl, thevictim of the offence, is on the same plane with that of the evidence of anaccomplice. The objection in such a case is not on grounds of complicitybut because the case is one of an oath against an oath. Although thereason for requiring corroboration of the evidence of the complainantin a sexual offence is not the same as in the case of the evidence of anaccomplice, the principles applicable to the question as to what in lawamounts to corroboration as formulated in Rex v. Baskerville (supra)have been followed in all subsequent cases of sexual offences.
Lord Reading in his judgment states that the nature of the corrobora-tion will necessarily vary according to the particular circumstances of theoffence charged. And that it would be in high degree dangerous toattempt to formulate the kind of evidence which would be regarded ascorroboration except to say that corroborative evidence is evidencewhich shows or tends to show that the story of the accomplice that theaccused committed the crime is true, not merely that the crime has beencommitted, but that it was committed by the accused. The evidence incorroboration must be independent testimony which affects the accusedby connecting or tending to connect him with the crime. It mustconfirm in some material particular the evidence that the accusedcommitted the crime. The law stated as follows by Baron Parke inRex. v. Stubbs ‘ was also adapted by Lord Reading: —
“ There has been a difference of opinion as to what corroboration isrequisite: but my practice has always been to direct the Jury not toconvict unless the evidence of the accomplice be confirmed, not onlyas to the circumstances of the crime, but also as to the identity of theprisoner.”
In accepting this statement Lord Reading said that it does not meanthat there must be confirmation of all the circumstances of the crime.
1 (1908) 2 K. B. 680.• 17 Or. App. Rtp. 46.
* (1916) 2 K. B. 658.* 169 B. B. 843.
172
HOWARD CJ.—The Kino *>• Ana Sheriff.
It is sufficient if there is confirmation as to a material circumstance ofthe crime and of the identity of the accused in relation thereto. Thestatement of Baron Parke was, as pointed out by Lord Reading, acceptedby the other Judges and has been much relied upon in later cases.Thus in Rex. v. Wilkes1 Alderson B. stated as follows :—
“The confirmation which I always advise juries to require is a
confirmation of the accomplice in some fact which goes to fix the guilt
on the particular person charged.”
In Rex v. Farler “ Lord Abinger, C.B., stated that the corroborationought to consist in some circumstance that affects the identity of theparty'accused.
Applying the principles formulated by Lord Reading after his examin-ation of the law as expounded in previous cases, the question ariseswhether the evidence adduced in this case apart from that of the com-plainant confirms not only the circumstances of the crime of rape, butalso the identity of the third accused. Docs it identify the latter as theperson who committed this particular offence? In this connectionCounsel for the appellant has not maintained that the conviction of theappellant on the charge of abduction cannot be supported. The evidenceof the complainant was to the effect that the first two accused draggedher from her house to the road where there was a bus. They forced herinto this bus which was being driven by the appellant. She was thendriven to a house in Puttalam where she was given in charge of twowomen. The three accused went away and returned in half an hour’stime when they took the complainant away in the bus. After sometime the bus was halted, the first two accused got out and left theappellant and the complainant in the bus. According to the latter’sstory the appellant then forcibly had sexual intercourse with her. Thefirst two accused came back and got into the bus and they all returnedto the house at Puttalam where the complainant asserts that theappellant again forcibly had sexual intercourse with her. The. firstaccused is then also alleged to have had sexual intercourse with herafter which the complainant was taken back to her house in the busby the first and second accused. The story of the complainant as to herbeing dragged out of her house by the first and second accused and putin a bus is corroborated by her brother Lama Tissa and Peter Singho.Neither of these witnesses testify to the fact that the appellant was eitherthe driver of the bus or in the bus at the time. The second accused,however, elected to give evidence on oath. He stated that on the nightin question he went along with the first accused in a bus to the house ofthe complainant, who he .alleged was a prostitute, as the result of priorarrangement. The bus, according to the second accused, was drivenby the appellant. The complainant who came along willingly was thentaken in the bus to the house at Puttalam. The second accused statedthat after the party went into this house he left them there and does notknow what happened afterwards. Can it be said that the evidenceas to the abduction coupled with that of the second accused identifiesin any. way the appellant as the person who committed the offence of
1173 E. R. 120.
* 173 E. R. 418.
<
173
The King v. Joseph Perera.
rape? Does it show or tend to show that the story of the complainantthat the appellant raped her is true? Apart from that story, the onlyevidence against him is the fact of abduction and that of the secondaccused, an accomplice. The case of Rex. v. Ukku Banda1 is authorityfor the proposition that where sworn evidence is given by a co-accusedthe proper direction to give to the Jury in such cases is that they shouldbe very careful in acting upon such evidence, in view of the temptationwhich always, assails a prisoner to exculpate himself by inculpatinganother, yet, subject to such warning they must weigh and considerevidence so given against another prisoner. No such warning was givenwith regard to the acceptance of the second accused’s evidence. Althoughthe question of the presence or absence of corroboration is one of law'to be decided by the Judge, in reality it becomes one of fact as to whethercertain evidence if believed shows or tends to show that the story of thecomplainant that the appellant raped her is true. The majority of theCourt are not satisfied that the fact of abduction or the evidence of thesecond accused does in fact tend to show that the appellant committedthe offence of rape. It seems to us that these matters do little more thanindicate that the appellant had an opportunity to commit or prepare tocommit the offence. It is not enough that they merely render the storyof the complainant more probable. In our view, therefore, the convictionand sentence of the appellant on counts 3 and 5 must be quashed.Similar considerations apply to the conviction and sentence of the firstaccused on count 4 which must also be quashed. Apart from this, thefindings and sentences are confirmed.
Convictions on counts 3 & 5 set aside.