GRATIAEN" J.—Ring v. A-tukorale
[COURT OF CRIMINAL APPEAL)
1948 Present: Dias J. (President), Nagalingam and Gratiaen JJ.THE KING v. ATUKORALEApplication 162 of 1948S. C. 67—M. G. Colombo, 6,755
Court of Criminal Appeal—Charge of rape—Corroboration of story of prosecu -trix—Must come from independent source—Complaint of prosecutrix toPolice—Treated as corroboration—Misdirection.
Where an accused is charged with rape, eorroboration of the story of theprosecutrix must come from some independent quarter and not from theprosecutrix herself. A complaint made by the prosecutrix to the Policein which she implicated the accused cannot be regarded as corroborationof her evidence.
Appeal on the law and application for leave to appeal againstconviction and sentence on matters other than law.
M. M. Kumarakuldsingham, with S. Saravanamuttu, for the accused,appellant.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
August 30, 1948. Gratiaen J.—
The appellant was charged with having committed rape on a womannamed Nandawathie on July 22, 1947. He was found guilty of thisoffence on the unanimous verdict of the jury, and was sentenced by thelearned Commissioner of Assize who presided at the trial to undergo aterm of 5 years’ rigorous imprisonment.
It was submitted to us that the conviction should be quashed on theground that the learned Commissioner, in his charge to the Jury, hadmisdirected them on the question whether there was 'cgrroboration of theevidence of the prosecutrix Nandawathie. In our opinion this submissionis entitled to succeed. ‘^Although the learned Judge warned the juryas he should have done, that it was unsafe to convict an accused personon a charge of rape unless the evidence of the prosecutrix was corro-borated in some material particular, the effect of this warning was vitiatedwhen he directed the jury on more than one occasion that they couldregard .as corroboration of Nandawathie’s story certain items of evidencewhich are clearly not corroboration at all.
GRATIAESf J.—King v. Alukorale
The corroboration which should be looked for in cases of this kind issome independent 'testimony which affects the accused by connecting ortending to connect him with the crime, and it is settled law that althoughthe particulars of a complaint made by a prosecutrix shortly after thealleged offence may be given in evidence against.the prisoner * * as evidenceof the consistency of her conduct with her evidence given at the trial ”,such complaint “ cannot be regarded as corroboration in the proper sensein which that word is understood in cases of this kind, and it is a mis-direction to refer to it as such Rex v. Lillyman 1 ; Rex v. Coulthread 2.As was pointed out in Rex v. Evans3, such evidence is not corro-boration because it lacks the essential quality of coming from anindependent quarter. It is in this respect that the learned Commissioner’scharge to the jury is at fault. He directed the jury that a complaintmade by Nandawathie to the Police on July 27, 1947, in which sheimplicated the appellant, could be regarded as corroboration of herevidence. The jury were similarly informed that certain crypticallegations made against the appellant in a letter written by Nanda-wathie to her mother on or about July 24, 1947, might be regardedas corroboration of her evidence. These misdirections in a chargewhich was in other respects not open to attack might well have turnedthe scales against the appellant when the jury retired to consider theirverdict, and we are'unanimously of the opinion that the conviction musttherefore be quashed. The facts of this case are very similiar to those inRex v. James Phillips 4, where the accused was convicted of rape after thejury had been directed that they could treat as corroboration evidencewhich was not in fact corroboration. As Lord Chief Justice Hewart,in pronouncing the judgment of the Court of Criminal Appeal, said,‘ * the warning relating to the importance of corroboration was undoubtedlygiven, but the effect of that warning was more than taken away by theCommissioners’ enumerating matters as corroboration which were notcorroboration. In these circumstances it is not possible for the Court t&say that, with a proper direction, the Jury must have come to the sameconclusion”. This affords, in our opinion, a complete answer to thesubmission of learned Crown Counsel who, while conceding that the juryhad been misdirected, invited us to dismiss the appeal in terms of theproviso to section 5 (1) of the Court of Criminal Appeal Ordinance on theground that no substantive miscarriage of justice had actually occurred.It has been established in a long chain of authorities in England (videArchbold’s Criminal Pleading and Practice, 31st Edition, page 307) thatwhen misdirection as to the law is established by the appellant, theconviction must be quashed unless the prosecution can show that on aright direction the jury “ would or must inevitably have come to thesame conclusion ”. We have examined the evidence in this case, andwe are satisfied that the prosecution cannot reasonably invite us to- holdthat the appellant would of must inevitably have been convicted if thejury had been properly directed. The appeal is accordingly allowed andthe conviction of the appellant is quashed.
1 (1896) 2 Q. B. 167.* 24 Cr. A. B. 44.
18 Or. A. R. 123.
18 Cr. A. R. 115.
THE KING v. ATUKORALE