HOWARD C-T.—The King v. Charles[Court of Criminal Appeal.]
1941Present: Howard C.J., Soertsz and de Kretser JJ.
THE KING v. CHARLES54—M. C. Balangoda, 30,008.
Evidence—Witness called by the Judge after close of defence—Right of Crownor Judge to call such evidence—Irregularity—No prejudice to accused—Criminal Procedure.
The right of the Crown or the Judge to call fresh evidence after theclose of the case for the defence is limited to something arising eximproviso.
Where a Judge has committed an irregularity in calling a witness afterthe close of the defence and no prejudice has been caused to the defencethe conviction will not be set aside.
HIS was an application for leave to appeal from a conviction beforea Judge and Jury.
J.L. M. Fernando, for the applicant.—The proceedings in this case arevitiated by two serious irregularities, viz.: (1) the presiding Judge calleda witness'for the prosecution after the case for the prosecution and thedefence had been closed ; (2) the Judge called another witness for theprosecution in the middle of his summing-up and put certain questionsto her.
Any new evidence called by the Court after the case has been closedshould not prejudce the accused. This is how section 429 of the CriminalProcedure Code has been construed. The discretion given to the Judgeby that section should not be exercised in a manner prejudicial to theaccused—Vandendriesen v. Howwa Umma In India, under the corre-sponding section 540, it was held that the power conferred on the Judgeby that section' is very wide, but the wider the power, the more cautiousshould be the exercise of discretion on the part of the Judge. See NatabarQhose *; Gulzari Lai v. Emperor *. Relevant English cases are HaroldDay ‘ and Dora Harris *.
[Court.—Is there no case in which new evidence was called on therequest of the Jury?]
There is none. Section 429, Criminal Procedure Code, gives no powerto the jury to ask for further evidence. In the present case, the additionalevidence was not led to meet a situation which had arisen ex improviso ;it, in fact, made the jury decide, in favour of the prosecution, a point onwhich they had previously been doubtful.
E. H. T. Gunasekera, C.C., for the Crown, was not called upon,
July 28, 1941. Howard C.J.—
In this application Mr. Fernando has' taken three points. The firstpoint is that the learned Judge called a witness after the cases for theprosecution and the defence had been closed. The second point is that
» (1937) 9 C. L. TP. 17.» (1922) 24 Cr. L. J. 3.
» (1922) 24 Ct. L. J. 957.• 27 Cr. App. R. 168.
' 5 20 Cr. App. R. 80.
' I NWARD C.J.—The King v. Charles
the learned Judge in the middle of his summing-up re-called one of thewitnesses called by the prosecution and put certain questions to her. Thethird point is that the medical evidence does not establish the cause ofdeath.
With regard to the first two points, we think that there was someirregularity and it was a procedure which Judges should avoid. On theother hand it is impossible to say that the applicant was in any wayprejudiced by the adoption of such procedure.
With regard to the calling of the new witness, the principles on whicha Judge should take such a course were laid down in the judgment ofAvory J. in the case of Dora Harris'. In that case the Recorder ofLiverpool proprio motu asked a co-defendant, Benton, who had pleadedguilty to the theft and remained throughout the trial in the dock, whetherhe was willing to give evidence and, on his saying that he was, he calledhim as a witness and examined him. It is obvious that there is nosimilarity between these two cases inasmuch as this witness, Benton, hadbeen present in the dock throughout the trial and listened to the evidence.In his judgment Avory J. laid down the following principle with regard tothis calling of a witness by the Judge and in doing so adopted the wordsof Tindal C.J. in Sullivan v. Frost,, 4 St. Tr. N. S., page 86, in whichthe following passage occurs : —“ Where the Crown begins its case like aplaintiff in a civil suit, they cannot afterwards support their case bycalling fresh witnesses because they are met by certain evidence t'hatcontradicts it. They stand or fall by the evidence they have given.They must close their case before the defence begins; but if any matterarises ex improviso which no human ingenuity can foresee, on the part ofa defendant in a civil suit or a prisoner in a criminal case, there seems tome no reason why that matter which arises ex improviso, may not beanswered by contrary evidence on the part of the Crown ”. Avory J.then goes on to say that that passage only applies to the Crown but itshould also apply to the Judge who calls a witness, that is to say, afterthe close of the case for the defence fresh evidence is limited to somethingarising ex improviso. Avory J. also says that in these circumstances andwithout laying it down that in no circumstances may an additionalwitness be called by the Judge after the close of the defence, that in thatcase it was irregular and calculated to do an injustice to the appellant.We think, therefore, in this case that it would have been better if theevidence of this witness had not been put before the Jury, even allowingfor the fact that the Jury had requested that certain points should becleared up and the Judge called this witness with this object in view.But we do not think that the applicant was in any way prejudiced orthat any injustice was done to him by the evidence of this witness. Soalso with regard to the re-calling of one of the witnesses for the prosecutionin the middle of the summing-up, that is also a practice which should beavoided.
With regard to Mr. Fernando’s third point, it is true that the medicalevidence does not establish in a clear and precise manner the cause ofdeath. There is nothing surprising in this in view of the fact that thebody was examined by the District Medical Officer several days after the
1 20 Cr. App. R. SG.
In re Estate of Harry Douglas Graham
death had occurred and during which period it had suffered from theattention of maggots. On the other hand, any gaps in the medicalevidence were filled in by the applicant himself. We think, therefore,that there js nothing in this point.
For the reasons I have given the application is dismissed.
THE KING v. CHARLES