The King v. Arthur Fernando.
[Court of Criminal Appeal.]
Present : Moseley S.P.J., Hearne and Cannon JJ.
THE KING v. ARTHUR FERNANDO.
74—M. C. Balangoda, 26,585.
Evidence—Charge of rape—Complaint by prosecutrix to father as a result of
threat—Complaint inadmissible—Contradictory evidence of complainant
Evidence uncorroborated—Verdict cannot be/supported.
In a charge of rape, where the defence was one of consent, the prosecu-trix made her first complaint to her father in consequence of a threatwithout which, on her own admission, the complaint would never havebeen made.
Held, that the complaint was inadmissible in evidence.
Where there were contradictory statements in the evidence of theprosecutrix, absence of corroboration together with the circumstancesin which she made her first complaint, and her failure to complainpreviously when opportunities arose, and the inconclusive nature of themedical evidence,—
Held, that the verdict could not be supported having regard to theevidence.
25 Cr. App. R. 219.
MOSELEY J.—The King v. Arthur Fernando.
PPEAL from a conviction by a Judge and jury before the 4thWestern Circuit.
J. A. P. Cherubim, for accused, appellant.
E. H. T. Gunasekera, C.C., for the Crown.December 17, 1940. Moseley J.—
Cur. adv. vult.
This is an appeal by leave of the Court on questions of fact. Theappellant was convicted at Colombo on October 31, 1940, of rape andsentenced by Nihill J. to five years’ rigorous imprisonment. Theverdict was by a majority of five to two.
The complainant, at the date of the alleged offence, was a few daysshort of sixteen years of age. The appellant admitted intercoursebut said that it took place with the girl’s consent. Consent, or noconsent, was then the only issue before the jury. The appeal is broughton the ground that the verdict is unreasonable and cannot be supportedhaving regard to the evidence. A further ground, which is not a questionof fact, is put forward, viz., that the learned trial Judge did not in hischarge to the jury, refer to the finding by the headman of a blood-stainedmat which, it is contended, supports the version of the accused, and wasnot put in evidence in either the Magistrate’s Court or Supreme Court.It seems, in fact, that the mat has in some mysterious fashion disappearedsince it was handed by the headman to the police.
The story of the complainant was practically uncorroborated. Therewas a slight scratch on her face which was consistent with her allegationthat the appellant placed his hand over her mouth to prevent her fromcrying out. On this point the trial Judge in scrupulous fairness to theappellant pointed out that the scratch might have been caused in ahundred other ways. The jury were warned in the clearest possiblemanner of the danger of convicting on what was described in sc manywords as the uncorroborated testimony of the girl. It would seem there-fore that very cogent grounds would have to be presented to us beforewe would consider interfering with the verdict of the jury, even lackingunanimity as it does.
The medical evidence was not very helpful. The injuries found on thegirl’s body which, apart from the facial scratch, were confined to herpudenda, were consistent with intercourse with or without consent.Had there been more injuries, said the doctor, one would have cometo the conclusion that there was no consent, an observation somewhatin favour of the appellant.
Then there was the question of the first complaint made to her fathersome few hours after the incident, and then only as the result of a-threat.She said she had intended to tell her father on his return from work but didnot do so. If she had not been threatened with assault, said she, she wouldnot have come with the truth. This piece of evidence seems to raise thequestion of the admissibility of a complaint made in such circumstances.In Rex v. Osborne1 in which the general question of the admissibility of
(1905) 1 K. B. D. 551.
MOSELEY J.—The King v. Arthur Fernando.
complaints of this nature, and in particular the question of a complaintelicited by questioning was considered by a Bench of Five Judges,Ridley J., in delivering the judgment of the Court, observed :
“ If the circumstances indicate that but for the questioning thereprobably would have been no voluntary complaint, the answer isinadmissible. If the question merely anticipates a statement whichthe complainant was about to make, it is not rendered inadmissibleby the fact that the questioner happens to speak first.”
Later in the judgment the same learned Judge intimated that thejudgment -only applied “ where there is a complaint not elicited byquestions of a leading and inducing or intimidating character, and onlywhen it is made at the first opportunity after the offence which reasonablyoffers itself.” In the present case the complaint while it was madeperhaps within a fairly reasonable time was made only in consequence ofa threat without which, on the girl’s own admission, it would never havebeen made. Moreover, before the girl under the inducement of the threatmade her complaint, she had spent a considerable time in washing herclothes, an act which seems to negative her expressed intention of tellingher father on his return from work, or anyone else. It seems to us thatthe girl’s complaint to her father was inadmissible.
To return to the facts the main criticism of the girl’s story is that it isunsatisfactory from the point of view of the number of contradictorystatements made by her. In fairness to her it must be realized thatin the Supreme Court she gave evidence nearly 12 months after theincident, and, as was pointed out by Crown Counsel, her self-contradictionswere mostly in regard to her emotions. It does, however, appear to usa matter of some importance that she gave no less than four differentreasons why she did not inform a sanitary inspector of the occurrence.The inspector must have come on the scene within a matter of secondsafter the completion of the act and, while she may have felt a naturalreluctance to discuss such a matter with one of the opposite sex who wasa comparative stranger, she said, as well, that she kept silence becausethe appellant requested her to because she feared he might return andinjure her, and finally that she had no opportunity. Another instanceof the unsatisfactory nature of her evidence was that in the lower Courtshe alleged that the appellant had made overtures to her on four occasions.This number she reduced in the Supreme Court to two.
It was further suggested by the defence that she had sent her grand-father away from the house on a wild goose chase and- that this factindicated consent on her part. It does appear from the evidencethat in giving the grandfather the information which prompted hisexcursion to the chena she elaborated upon a message which she hadreceived from her father, but her action in this respect may have beeninnocent of guile. What we have to decide is whether the girl’s evidencewas of such an unsatisfactory nature that it was unreasonable on thepart of the jury to accept it. In Rex v. Crocker 1 the Lord Chief Justice,in dismissing the appeal said :
“ The jury had the opportunity of seeing and hearing the witnesses,and there are persons—especially young persons—who somehow are
» IT Cr. App. R. 4G
MOSELEY J.—The King v. Arthur Eemando.
able to convey the fact that the story they tell is true, and here, afterthe learned Judge’s warnings, the jury came to the conclusion that thegirl’s story was true and ought to be acted upon.”
That was a case of oath against oath. In Rex v. James Phillips1 the trialJudge had pointed out one or two matters to the jury which, strictlyspeaking, were not corroboration of the woman’s story. The Lord ChiefJustice said that if the Judge had warned the jury that in the absence ofcorroboration it was unsafe to convict the appellant, and the jury not-withstanding, being. convinced of the truthfulness of the prosecutrix,had convicted him, that conviction would no doubt have been unassail-able. So here Crown Counsel urges us, in view of the adequate warningby the Judge, not to disturb the conviction.
A point which was stressed by Counsel for the Crown is that theappellant did not take an early opportunity of disclosing his defence.In support of this contention he relied upon the request of the appellantmade in the Magistrate’s Court on February 6 that a certain witnessshould be called to prove his character and that he (the appellant) wasworking on the land adjoining that of the witness on the day in question.This request does indeed appear at first glance to have been made with aview to proving an alibi. The appellant’s explanation of the requestwas that he wanted the witness to bear out the statement which he (theappellant) made subsequently in the Supreme-Court to the effect that hewent to the proposed witnesses’ land at about 9.30 a.m. which was oneand a half hours after the time of the alleged offence. The explanationappears to us feasible. Moreover, it is contended by Counsel for theappellant, that the defence of consent was foreshadowed in the Magis-trate’s Court when the prosecutrix was asked in cross-examinationwhether she did not get her young brother out of the way by giving himtwo cents to buy sugar. This particular portion of the deposition of thegirl was put before the jury in a somewhat irregular fashion, and CrownCounsel before us sought to attach a different meaning to the girl’sevidence by equally irregularly referring to a further passage in the girl’sdeposition which, he argued, proved that the incident of the sugar tookplace in another connection altogether. We have therefore deemed itproper to examine the girl’s deposition as a whole. She is recorded ashaving said that her brother told her he had gone to buy sugar for two^cents which Arthur Baas (appellant) had given him that morning. It isquite clear therefore that the question asked of the girl in cross-examina-tion in the Magistrate’s Court to which she answered “ I did not givemy brother two cents to buy sugar. I had no money with me that day,”was put with the suggestion that she was a consenting party.
In Rex v. Hedges2 Phillimore J. in dismissing the appeal in a case ofthis nature said : —
“ The complaint, the doctor’s evidence, and the prisoner’s denialsin cross-examination, and, finally, the statement he made whenarrested, are all facts that the jury were entitled to take into considera-tion as being to some degree corroboration of the girl’s story.”
In the present case there are no such features. It is a case of oath againstoath.
1 18 Cr. App. R. 77-5.
* 3 Cr. App. R. 262.
Ramanathan v. Saleem.
This Court, in The King v. M. H. Andiris Silva and another 1 expressedits views strongly upon its disinclination to question a verdict given by ajury on questions of fact. Nevertheless in view of the contradictorystatements which occur in the evidence of the prosecutrix and thegenerally unsatisfactory nature thereof, the absence of corroboration,the circumstances in which the girl made her first complaint and herfailure to complain previously when opportunities arose, and the incon-clusive nature of the medical evidence, the majority of the Court feelsthat it may properly be said that the verdict cannot be supported havingregard to the evidence.
We would therefore allow the appeal. The conviction and sentenceare set aside.
THE KING v. ARTHUR FERNANDO