110-NLR-NLR-V-43-THE-KING-v.-BURKE.pdf
MOSELEY S.P.J.—The King v. Burke.
465
[Court of Criminal Appeal.]
Present : Moseley S.P.J., Soertsz and de Kretser JJ.
THE KING v. BURKE.22—M. C. Colombo, 41,852.
Court of Criminal Appeal—Notice of appeal—Leave to amend Notice of Appeal-Rape—Evidence of disease in accused—Evidence Ordinance, s. 11 (b).Substantial particulars of misdirection or other objections to thesumming up must be set out in the notice of appeal, and leave to amendthe notice of appeal by adding a further ground of appeal will not bepermitted except in a capital case.
In a case of attempted rape, in which the prosecutrix was found to besuffering from gonorrhoea one week after the assault, the presence ofgonorrhoea in the accused at the same time was relevant undersection 11 <!>) of the Evidence Ordinance.
C
ASE tried by a Judge and Jury before the 2nd Western Circuit,1940.
C. 5. Barr-Kumarakulasinghe (with him M. M. Kumarakulasinghamand M. Ratnam), for the accused, appellant.
E. H. T. Gunasekera. C.C., for the Crown.
Cur. adv. vult.
August 2, 1940. Moseley S.P.J.—
The appellant was convicted on July 3, 1940, before Howard C.J..of attempted rape, and was sentenced to four years’ rigorous imprison-ment. He appeals against the conviction on a question of law and appliesfor leave to appeal on questions of fact. At the outset, his Counsel appliedfor leave to amend the notice of appeal on questions of law by adding afurther ground. After consideration of. Rex v. Wyman and Another,1in which Darling J. wished it to be understood that “ substantial parti-culars of misdirection or of other objections to the summing up mustalways be set out in the notice of appeal ” and of Rex v. Cairns", in whichleave to add to the grounds of appeal was granted “ as it was a .capitalcase ”, the application was refused.
The sole ground of appeal on a question of law appeared to be of no-substance and was confined to the contention on behalf of the appellantthat the verdict of the Jury was unreasonable, having regard to the factthat the evidence of the complainant was not _ corroborated in anymaterial particular implicating the accused.
> 13 Cr. App. R. 163.1 20 Cr. App. R. 44.
466 .MOSELEY S.P.J.—The King v. Burke.
The prosecution relied for such corroboration upon the fact that thecomplainant was found on July 29, seven days after the date of thealleged offence, to be suffering from gonorrhoea. On August 11, theappellant was examined by Dr, Thiagarajah, who was definite that onthat date he too was suffering from the disease. The witness hadpreviously examined the appellant on July 31, with negative results,but from what he found on August 11 he formed the opinion that theappellant had the disease on July 31 and that it was then in chronicform. The learned Chief Justice, in his charge to the Jury, referred tothese facts as providing the only corroboration of the girl’s story. Hiswarning as to the weakness of such corroboration and as to the danger ofconvicting without corroboration was, if we may with respect say so,entirely adequate.
Counsel for the appellant argued that it had not been proved that thelatter was suffering from the disease at the relevant date and that if hewere, the fact did not tend to implicate him in view of the medicalevidence as to the high incidence of the disease in a city such as Colombo.He further contended that there were many ways whereby the girlmay have been infected other than by contact with the appellant. Hewent further and challenged the admissibility of evidence as to thepresence of the disease in the appellant as being irrelevant. It seemsto us to be relevant, if for no other reason, by virtue of section 11 (b)of the Evidence Ordinance (Cap. 11), since the fact of the appellant’sinfection enhances the probability of the girl’s allegation that it washe who assaulted her.
The Jury had before them ample evidence upon which they couldfind that the, appellant was suffering from the disease at the date of thealleged offence.
Had the disease been a rare one, the fact might well have been con-clusive against the appellant. But the presence of the disease, prevalentthough it may be, is, in our view, clearly a fact which, in some degree,has a bearing on the probability of the girl’s story. Admittedly therewere unsatisfactory features in her "evidence, viz., that she made nocomplaint for several days, that no one came in response to her allegedscreams, in spite of her statement that there were two people in theadjoining room, and that she admitted discussing with her grandmotherwhat evidence she should give. There was also her statement that therewas some animosity between the appellant and her grandmother. Allthese matters were before the Jury and it was for them to considerwhether such corroboration as exists was sufficient to entitle them toadopt the complainant’s story as being in the main true. The Jurywere in retirement for an hour and it must be assumed .that they came'to no hasty conclusion but that they gave due consideration to the• matter of corroboration on which they had received a careful direction.We are not here to retry the case and we are unable to say that theverdict is unreasonable or that it cannot be supported, having regardto the evidence.
We, therefore, dismiss the appeal and affirm the conviction and sentence.
Appeal dismissed.