THE KING v. CHALO SINGHO

066-NLR-NLR-V-42-THE-KING-v.-CHALO-SINGHO.pdf


SOERTSZ J.—The King v. Chalo Singho.
269
[Couht, of Criminal Appeal]
1941Present: Soertsz, Keuneman, and de Kretser JJ.
THE KING v. CHALO SINGHO4—M. C. Chilaw, 12,555.
Evidence—Witness named on back of indictment—Failure of Crown to callor tender for cross-examination—No presumption tinder EvidenceOrdinance, s. 114.
Prosecuting Counsel is not bound to call all the witnesses named on theback of the indictment or tender them for cross-examination. Inexceptional circumstances the presiding Judge may ask the prosecutingCounsel to call such a witness or may call him as a witness of the Court.
There is no misdirection by . the Judge when he omits to refer to thepresumption under section 114 (/) of the Evidence Ordinance in casesin which the Crown does not call or tender for cross-examination on therequest of the prisoner’s Counsel a witness, whose name appears on theback of the indictment and whom the prisoner’s Counsel had himself anopportunity of calling.
A
PPEAL from a conviction by a Judge and jury before the WesternCircuit.
J. A. P. Cherubim, for the accused appellant.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
March 7, 1941. Soertsz J.—
This case came before us by way of an appeal on questions of law, andof an application for leave to appeal on the facts. After hearing Counselfor the prisoner on the application; we refused it because, assuming aproper charge by the Judge, there was ample evidence to support theconviction.
The questions of law raised in the notice of appeal were :—
Is the Crown bound to call or, at least, to tender for cross-examin-ation every witness whose name appears on the back of theindictment ?
If any of these witnesses are not called, or tendered for cross-examination, on the request of the accused or his pleader, orotherwise, is there non-direction if the Judge fails, in the course. of his charge to the jury, to direct them under section 114 (/)
42/22
270SOERTSZ J.—The King v. Chalo Singho.
of the Evidence Ordinance, that they are entitled to presumethat the witnesses who were not called or tendered, wouldhave been unfavourable to the case for the Crown if they hadbeen called ?
Counsel for the appellant did not press the point involved in thefirst question with much enthusiasm probably because he, very properly,felt deterred by the opinion of the Privy Council delivered in the case ofThe King v. Seneviratne That opinion put an end to a controversywhich had long vexed the Bench and the Bar of this country, and >veshould have thought that it would not arise to trouble us any more.But the frequency with which this matter continues to make appearancein our Assize Courts in some form or other, and the fact that it has beendefinitely raised in this notice of appeal, show that the Dragon is notquite dead, and it would, therefore, perhaps, be useful to take a briefsurvey of the history of this question in England, and here.
In England, the view on this matter has undergone a complete meta-morphosis. In 1823, in the case of Rex v. Simmonds it was held that“ though Counsel for the prosecution is not bound to call every witness. . . . on the back of the indictment, it is usual for him to do so,and if he does not …. the Judge will call the witness that theprisoner’s Counsel may have an opportunity of cross-examining himFifteen years later, in the case of R. v. Holden’, the ruling was that“ every witness present at a transaction . . . ought to becalled …. even if they gave different accounts ”. But in theyear 1847 in Reg v. Woodhead‘ a very different view was taken byAlderson B. who declared that the Judges had laid down the rule “thata Prosecutor is not bound to call witnesses merely because their nameswere on the back of the indictment ”, and the learned Baron went onto add that witnesses whose names were on the indictment should bebrought to Court by the Prosecutor because the prisoner might, other-wise, be misled into relying on their presence, and neglect to bring themhimself, “ but they are to be called by the party who wants theirevidence ”, and they become the witnesses of the party calling them.This view was adopted by Erie J. in 1848 in R. v. Edwards et alc andwhen Counsel for the prisoner in that case requested the Judge to calla witness whom the Prosecutor was not calling, as a witness of the Court;the learned Judge said: “ No, I do not think I ought to do so. Thereare, no doubt, cases in which a Judge might think it a matter of justiceso to interfere but, generally speaking, we ought to be careful not tooverrule the discretion of the Counsel who „are, of course, more fullyaware of the facts of the case than we can be ”. Again in 1876, inR. v. Thompson ° Lush J. said “ the prosecution are not bound to call…. witnesses because their names happen to be on the back of
the indictment”, and in 1927 the Court of Criminal Appeal upheldthese views in the case of R. v. Harris’. There can, therefore, be nodoubt in regard to the view that has prevailed in England for nearly acentury.
1 38 N. L. R. 221.4 2 Car. dk K 520 ; 175 Eng. Rep. 216.
1 1 Car. & P 82 : 171 Eng. Rep. 1111.'5 3 Cox Cr. C. 82.
5 8 Car. <k P 606 ; 173 Eng. Rep. 638.’ 13 Cox Cr. C. 181.
7 28 Cox Cr. C. 432.
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Counsel for the appellant, however, referred fo certain local casesin support. 01 Uis contention. In The King v. Perera Wood Renton C.J.,whilst stating that “ the Crown is under no obligation to call witnesseswhose evidence it regards as unnecessary in view of evidence which hasalready been given. Nor while it has no right to withhold a witnessmerely because his testimony may help the case for the defence, is itbound to adopt as its own, witnesses whom it alleges to be dishonest”,went on to say that “in a criminal prosecution the Crown should, as anordinary rule, call the attention of the Court and of Counsel for theaccused to the fact that it does not propose to call certain witnesses asits own, should state the reason why this is considered undesirableand should tender the witnesses in question for 'cross-examination ”. Forthis dictum the learned Chief Justice relied on Rex v. Simmonds3 ;Queen Empress v. Tulla3; Queen Empress v. Durga *, and Rex v.Fernando“. In Queen Empress v. Tulla, Tyrrell J. expressing himselfin terms similar to those in the passage I have quoted from the judgmentof Wood Renton C.J., merely stated his own opinion without referenceto any authority. The case of Queen Empress v. Durga was heard by aFull Bench including Tyrrell J., and although it is quoted by WoodRenton C.J. in support of his view, it is really opposed to that view.The Bench in that case ruled : “ We can find nothing in the Code of Crimi-nal Procedure which imposes an obligation to call all the witnesses enteredin the Calendar as witnesses for the prosecution …. It appearsobvious to us that it cannot be the duty of the Public Prosecutor actingon behalf of the Government and the country to call or put into the witnessbox for cross-examination a witness whom he believes to be a false orunnecessary witness This Bench followed the rulings of Alderson B.in Reg. v. Woodhead0 and of Parke B. Reg. v. Cassidy ’ Rex v.Simmonds, and Reg. v. Holden were not referred to. So that the Indianfoundation upon which Wood Renton C.J. based himself is really non-existent. The local case of Rex v. Fernando referred to by Wood RentonC.J. is not of much assistance. Hutchinson C.J. having said: “ It hasalways been my practice to require the prosecution to submit for cross-examination any witness whose name is on the indictment if the defencewishes to cross-examine him ”, went on to add: “ But I find that thatpractice has not been uniform in Ceylon, and there is no law prescribingit, although it seems to be right ”.
It will thus be seen that the principal local case upon which the Counselfor the appellant relied to support his contention that witnesses whosenames appear on the back of the indictment should be examined bythe Crown or, at least, tendered for cross-examination, rests upon muchslighter authority than at first sight appears to be the case.
The King v. Amerdeen8 is an earlier judgment of Wood Renton J. inwhich he expresses an opinion similar to that in King v. Perera withoutwhich reference to authority. The other local case cited by appellant’sCounsel, namely, The King v. Kennedy * deals with a different point.
1 IS N. L. R. 215.5 (1908)2 Leader L. R. 81.
1 Car. «fc P 84 ; 171 Eng. Rep. 1111.• 2 Car.& K 520 ; 175 Eng.Rep.216.
(1885) I. L. R. 7. AU. 904.’ 1 F. <fc F. 79 ; 175 Eng. Rep,634.
4 (1893) 16 Cal. 84.8 3 Bal.Rep. 127.
• 36 X. L. R. 303.
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SOERTSZ J.—The King v. Chalo Singho.
With the case law in this condition, our Courts did not follow a uniformcourse in this matter, and with no Court of Criminal Appeal to settlethe point, it may be said that the position was “ quot judices, totsententiae ” till the ruling by the Privy Council in the case referred to. Thatruling must now be regarded as the final pronouncement on the question.Lord Roche after dealing with a matter of hearsay evidence to which theattention of the Board had been asked, went on to say:—“It is saidthat this state of things arose because of a supposed obligation on theprosecution to call every available witness on the principle laid downin Ram Ranjan Roy v. The King Emperor to the effect that all availableeye witnesses should be called by the Prosecution even though, as in thecase cited, their names were on the list of the defence witnesses. TheirLordships do not desire to fetter discretion on a matter such as thiswhich is so dependent on the particular circumstances of each case.Still less do they desire to discourage the utmost candour and fairnesson the part of those conducting prosecutions ; but, at the same time,they cannot, speaking generally, approve of the idea that a prosecutormust call witnesses irrespective of considerations of number and ofreliability, or that a prosecutor ought to discharge the functions both ofprosecution and defence
This view is in accordance with the. views taken in Reg. v. Woodhead ;R. v. Edwards; R. v. Thompson ; and R. v. Harris; and is contrary tothose in the earlier cases Rex. v. Simmonds and R. v. Holden. In regard tothe case of Ram Ranjan Roy mentioned by Lord Roche, Jenkins C.J.bases his judgment that “ it was undoubtedly the duty of the PublicProsecutor …. to have placed before the Trial Court thetestimony of all available witnesses” on the ruling in R. v. Holden. Hisattention does not appear to have been drawn to the decisions given inthe later cases.
It must, therefore, be regarded as well-established now, that a prose-cutor is not bound to call all the witnesses on the indictment, or totender them for cross-examination. That is a matter in his discretion,but in exceptional circumstances, a Judge, might interfere to ask himto call a witness, or to call a witness as a witness of the Court. It must,however, be said to the credit of prosecuting Counsel to-day, that if theyerr at all in this matter, they err on the side of fairness.
In regard to the second question raised in the Notice of Appeal,appellant’s Counsel adduced a considerable volume of Indian case lawin support of it. An independent examination of a great number of otherIndian cases has only served to reveal a bewildering variety of viewon this question, and very little assistance can be derived from that'quarter.
But it is due to Counsel that we should examine briefly the cases herelied on. In'Nayan Mandel et al v. Emperor*, on objection taken thatthe Judge should have told the jury'that if material witnesses are notcalled by the Crown, they are entitled to presume that they would hothave supported the prosecution, Graham J. disposed of it by saying“ the charge does, however, contain a direction of this nature ”. Lort-Williams J. observed, “ the latter part of the learned Judge’s statement1 16 Or. Law Journal India 172.* (1930) A. I. R. Cal. 134.
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about the presumption which may be drawn is, of course, correct. Ifthe prosecution, in their discretion, do not choose to call such a witness,then the presumption may be "drawn that his evidence, if given, wouldbe unfavourable to the case Unfortunately the report does notdisclose, what “ the latter part of the learned Judge’s statement aboutthe presumption” was, nor does it provide a clue as to what was meantby “ such a witness In the absence of that information the case isof no assistance to us. Then there is the case of Hachani Khan v. Emperor1in which the Court (Pearson & Patterson JJ.) said “ it is pointed out thatSir Char an, one of the occupants of the boat, was not examined as awitness and it is urged that the Judge was guilty of a misdirection innot telling to the jury that it might and indeed'should be presumed fromthe fact of his non-examination that if he had been examined his evidencewould not have supported the case for the prosecution. This con-tention is perfectly correct so far as it goes. The Judge should in ouropinion have given the jury a direction on these lines ”. All that needbe said at present on this dictum is that it is clearly opposed to section114 of the Evidence Act when it says that the Judge should have toldthe jury that they should presume. So far as telling the jury thatthey may presume is concerned, comment will presently be made upon it.The next case cited is that of Nababali and others v. Emperor ’, but itwould be more convenient to examine it with the case of Girischandra v.Emperor *. In the latter case, Lort-Williams J. said that the presumptionunder section 114 might be drawn by the jury if, as a condition precedent,they were satisfied “ that the person who was being kept back, in factknew the facts, and was a willing and truthful witness, and, therefore,willing and able, to give relevant evidence at the trial ”. In our view,this is an unattainable state of things. We cannot imagine how jurorscould decide that a witness who has not been called, and whom, therefore,they could not have seen, knew the facts, was a willing witness, was atruthful witness, was able to give relevant evidence and was willingto give that evidence. The learned Judge goes on to say “ the nextpoint is that the learned Judge did not direct the jury properly that inthe absence of these witnesses they . might draw the presumption insection 114 (g). What he said was that if they accepted the contentionof the Public Prosecutor that these witnesses were not* called becausetheir evidence was valueless, then they ought not to draw the presump-tion. But, on the other hand, if they did not believe his explanation,they were at liberty to draw the presumption if they thought fit. Thatwas a proper direction ”. We find it impossible to endorse these state-ments of the Sessions Judge and of the Appeal Judge. It seems wrpngthat a Sessions Judge should direct the jury that their drawing or notdrawing the presumption depends on whether or not they were satisfiedof the veracity of the Public Prosecutor when he' declared that theevidence he is not leading is valueless.
In our opinion, a prosecutor is not entitled to declare to the jurythat witnesses not called although valuable, have not been called for some
» A. I. R. {1930) Gal. 708.
A. I. R. (1930) Cal. 481.
* A. I. R. (1932) Cal. 118.
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SOERTSE J.—The King v. Chalo Singho.
reason, or that they are Valueless and, therefore, not called. If occasionshould arise for such matters to be considered, that should be done inthe absence of the jury.
In Nababali’s case (supra) Panckridge J. proposed a similar test to thejury when they are considering whether or not they would draw thepresumption—did they accept the explanation of the prosecutor? Inboth these cases it was held that the omission of the Judge to tell thejury that, if the condition referred to were satisfied, they may apply thepresumption, amounted to non-direction and vitiated the conviction.We are unable to agree with the views taken in these cases. As we havealready observed there are Indian authorities to the contrary, e.g., in reMuthaya- Thevan 1 and Hari Mahto "
An answer to the question raised must be sought in section 114 itself.It enacts “ The Court may presume the existence of any fact which itthinks likely to have happened, regard being had to the common courseof natural events, human conduct, and public and private businessin their relation to the facts of the particular case ”. In this contextthe word “ Court ” must bear the meaning given to it in the definitionclause of the Ordinance, namely, section 3: —“ Court ” includes allJudges and Magistrates, and all persons, except arbitrators, legallyauthorized to take evidence. Jurors obviously fall outside these classes,and therefore, in strict law, it is not open to them to draw a presumptionas to the existence of any fact independently, but only when their attentionis called to the matter by the Judge, and they are directed that they mayapply the relevant presumption if they thinks fit. The Judge himself willfirst consider the question whether there is occasion for any of thepresumptions mentioned in section 114 and when he is consideringthe matter he is required to have regard “ to the common course ofnatural events, human conduct, and public and private business ”, &c.Consequently, it is a matter in the discretion of the Judge to say whetheroccasion has arisen in a particular case to call the attention of the juryto,the presumptions arising under section 114.
This view is supported by a passage in Phipson on Evidence, 1921ed.,p. 12 :—“ It is the duty of the Judge to explain, and of the jury toobserve any legal rules which regulate the production or effect of evidence,e.g., which side has the burden of proof; what presumptions apply”,&c. “ Explanation of the presumptions that arise presupposes that theJudge is satisfied that some presumption or other arises.
But, of course, if in the opinion of an Appellate Tribunal the Judgeought to have referred to any presumption under section 114 in thecircumstances of a particular case, it would interfere on the groundthat there has been non-direction. That can hardly happen in a casesuch as we have before us for the reason that before inviting the attentionof the jury to the presumption in illustration (f), the Judge must besatisfied that the evidence of witnesses is being withheld, and it. would
» A. J. R. (1927) Mad. 475.
A. t. R. (1936) Patna 46.
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not be possible for him to be so satisfied when it lies in the power of thedefence to lead that evidence. In Woodroffe and Ameer Dili's Evidence,ninth ed., p. 811, note 7, it is stated on the strength of the authoritiescited in support that for the presumption to arise “ the evidence mustbe available; there is no presumption if it is not within the control of theparty failing to produce it, nor from the failure to call as a witness onewhom the other party had the same opportunity of calling, nor one whoseevidence would be simply cumulative In other words, section 114 ofthe Evidence Ordinance is a reproduction of the “ best evidence ” rule,which according to Taylor on Evidence, 12th ed., sec. 391, “ does notdemand the greatest amount of evidence which can possibly be givenof any fact, but its design is to prevent the introduction of any, which,from the nature of the case, supposes that better evidence is m thepossession of the party. It is adopted for the prevention of fraud, for,when better evidence is withheld, it is only fair to presume that theparty has some sinister motive for not producing it ”.
The Indian view in the cases cited that where witnesses whose namesappear on the indictment have not been called, the trial Judge is boundto refer to the presumption under section 114, and to ask the jury toconsider whether they would apply it, is the logical outcome of the otherview taken in the Indian cases—that the Prosecutor is bound to callor, at least to tender such witnesses, for if a party fails to do what it isbound to do, occasion, necessarily, arises for adverse comment. Butfor the reasons given by us, we are unable to agree with the rulings inthe Indian cases. They cannot be supported in face of the English caseswe have referred to and of the opinion of the Privy Council in The Kingv. Seniveratne.
We, therefore, rule on the second question that there is no non-directionby the Judge when he omits to refer to the presumption under section 114 (f)of the Evidence Ordinance in cases in which the Crown does not call ortender for cross-examination on the request of the prisoner’s pleader awitness whom the prisoner’s pleader had himself an opportunity of calling.Indeed, it would be a misdirection for a Judge, in those circumstances,to tell the jury that they may apply the presumption.
Those, exactly, are the facts in this case as disclosed by the followingnotes of the trial: “ Counsel for the defence submitted that CrownCounsel is bound to call Elmia whose name is on the back of the indictmentand that if he is not calling him, he is at least bound to tender him forcross-examination. Court informs Counsel that he could call him if heso desires and refers him to the latest decisions. Counsel for the defencestates he does not wish to call him as his witness.”
We are of opinion that the appeal fails on both matters of law submittedto us. We dismiss it.
Appeal dismissed.