127-NLR-NLR-V-50-THE-KING-v.-DHARMASENA-et-al.pdf
CANEKERATNE J.—The King v. Dharmaaena
506
[COTTBT OF CBTMTNAI, APPEAL]
1949 Present: Canekeratne J. (President), Dias and Windham JJ.THE KING ». DHABMASENA et cd.
Appeals 10—11 of 1949S. C. 1—M. G. Colombo 36,089
Court of Criminal Appeal—Charge of murder-—Cross-examination by Judge—Hostility toaccused—Presumptionof innocence—Jury might
disregard—“ Any other ground"—■Ordinance 23 of 1938—Section 5 (1).Where a Judge takes on himself the burden of cross-examination ofthe accused and conducts it in a manner hostile to the accused thereis a miscarriage of justice if such cross-examination may be reasonablyconsidered to have brought about the verdiQt of “ Guilty ” where on thewhole facts and without this attitude on the part of the Judge the Jurymight fairly and reasonably have found the appellant “ Not guilty
An act of this kind on the part of a Judge comes within the words“ any other ground ” in section 5 (1) of Ordinance 23 of 1938 and theCourt of Criminal Appeal can grant a re-trial.
■^V.PPEATjS from two convictions in a trial before a Judge and Jury.
S. B. Lekamge, for 1st accused appellant.
A. JB. Perera, for 2nd accused appellant.
H. A. Wijemanne, Grown Counsel, with J. A. P. Cherubim, CroumCounsel, for the Crown.
March 26, 1949. Canbkeeatne J.—
The two appellants were convicted of the murder of GovipolagodageDionysius de Silva Seneviratne, and were sentenced to death, the firstappellant being convicted on count one of the indictment, an offencepunishable under section 113b read with sections 296 and 102 of thePenal Code, and on count two, an offence punishable under section 296of the Penal Code. The second appellant was also convicted on countone. She was also charged with having abetted the first accused in thecommission of the offence set out in count two but the Jury did notconsider that count, as the learned Judge told the Jury that if theywere left in a state of honest doubt as regards the charge of conspiracythen both counts one and three fall. On March 16, 1949, this Courtdismissed the appeal of the first appellant and quashed the convictionof the second appellant and ordered a new trial, and we now proceed togive our reasons for so doing.
According to the evidence, the first appellant who lives at Nugegodacame to the house of the deceased, 107, College Street, Kotahena, about8.45 in the morning at a time when the servant woman, Alice Nona,was the only inmate in the deceased’s premises and having sent theservant woman away or just after she left the place awaited the arrivalof the deceased and proceeded to kill him. Apparently just after thishe ran to the adjoining house, threatened the servant woman there,dropped the knife he had and also his sarong with which he had coveredhis head and ran outside. He had left his umbrella at 107, College22—i>.
1——J. S. A 90970—1,040 (8/40)
606
CANERETtATNE J.—The King v. Dharmasena
Street; • one Khalid saw this accused drop his coat which was foundto be stained with human blood, and a purse a little further awayand then depart.
The first and main contention of counsel for the first accused wasthat the method adopted by the learned Judge of refreshing the memoryof the witness Alice Nona by reading the passage marked X (in page 96of the record) was contrary to law. In this connection he referred towhat he said, was the rule laid down by the majority view in the caseof The King v. Namasivayam1, and to the passage from the case ofNoor Bux Kazi v. The Empress, quoted in the former case. It isunnecessary to discuss the views expressed in the former case. Evenwithout the evidence of Alice Nona there was ample evidence in the caseto establish the guilt of the first accused. It is not necessary to discussthe question of conviction on the other count. The other matter onwhich Mr. Lekamge relied as misdirection was his contention that thelearned Judge allowed some photographs to be produced in evidence.In considering the admissibility of these there are always two questionsto be met—competency, and materiality and relevancy. If the photo-graph is an accurate and honest representation of the facts one thencomes to consider whether it is material and relevant, whether the matterpictured will genuinely and properly aid the Jury in determining the truefacts. If it passes both tests it becomes good evidence. A photographcomes in as a part of the testimony ; it is used to explain or make oneselfintelligible to a Judge; it is referred to in section 3 of the EvidenceOrdinance. A photograph may be demonstrative evidence or documen-tary evidence. It may be that cameras do lie, {e.g., one not held ateye-level, one with a long focus lens, &c.), but one does not dispensewith all witnesses because there are perjurers. If real evidence {e.g.,a knife) can be brought, why not a photograph 1 If a jury may viewa scene, why not a photograph of the scene ? There was no misdirectionand the contention fails.
The second appellant began her evidence on January 25, her cross-examination by leading counsel for the Crown occupied a little over oneday. A series of questions were then put to her by the learned Judge,these and the answers occupy pages 520 to 529.
After this examination the witness was re-examined by her counsel;in the course of the re-examination too, as of the cross-examination, thetrial Judge put certain questions to her. A few of the questions wereloaded with all the observations that arose upon all the precedingparts of the case and they would tend to detract the attention of every-body, including that of the witness. Some of the questions to whichobjections were taken, together with the explanatory ones, are thefollowing :—
“ Q.—He generally did the marketing, dropped in to see his childrenat school, fed them at their meals, he was an old man, not inthe best of health, careful of his habits. Do you seriouslysuggest that he would get about outside every day of the week,
or practically so ?
A.—Yes. 2
i {1948) 49 N. L. S. 289.
Page 520.
CANT3KERATNIS J.—The King v. Dharmasena
507
Q.—Will you agree that if anyone wished to murder this poor manthe best opportunity was while you were living at 107, CollegeStreet ?
A.—No.
Q.—So that if anyone had killed the deceased then, you would havebeen in the house in the morning ?
A.—Yes.
Q.—Two weeks before his death you took a teaching job without evenknowing what the salary was. Was that because you wantedto get out of the house ?
A.—No.
Q.—You said yesterday that you took up teaching at your husband’srequest ?
A.—Yes.
Q.—Is it not easy to put everything on a dead man who oannot answerfor himself ? You say he ill-treated the children, he borrowedmoney from 1 Afghans, he insisted on your not leaving theschool without the children, he got you this teaching job. Heis not here to say no. Is that not so ?
A.—(No answer).
Q.—If he did get you this teaching job would you not know on whatterms, or how much of it he was going to get and how muchof it you were to get ? Is that not so ?
A.—(No reply).
Q.—Did you get this teaching job regardless of salary because youhad made up a certain plan ?
A.—No.
Q.—If the servant was one whom you could persuade to take intoyour confidence, all that the servant had to say was that shewas out at the time ? Is that not so ?
A.—(No reply). 2
Q.—Alice told the jury that you told her that after the death therewould be an inquiry which would be over in a month and thatthe matter would then be dropped. You heard her say that 1
A:—Yes.
Q.—Do you think she is intelligent enough to invent that ?
A.—I do not know.
Q.—She is a servant woman, illiterate and ignorant. Do you thinkshe knows about court proceedings ? What happens whena person is killed, how long an inquiry like this is to last, andall such matters ?
A.—I do not know.
Q.—Some one has told her that, Who is that person ?
A.—I do not know.
Q.—So that the assailant would have had a clear one hour at leastto make his get-away ?
A.—Yes.
Q.—And if Alice said, “ I do not know ; I was in the market ”, theinquiry would have to be dropped after about a month quiteapart from the Police. There would be no evidence at all ?
1 Page 521.* Page 522.
508
CAMEKBRATNJi J.—The King v. Dharmaaena
A.—Yes. x
Q.—How is it that Alice herself was reluctant to get back to the houseafter the marketing 1A.—I do not know.
Q.—And yon said yon could not help it ?
A.—Yes. 2
Q.—That is a common-sense answer. Instructions like that are fornormal occasions, not for unusual occasions. Is that not so ?
A.—Yes.
Q.—Why did you tarry at standard five ?
A.—-(No answer).
Q.—What on earth could the children have done in that crisis ?
A.—(No answer).
Q.—Answer these questions. I must put these matters to the Jury.I want an answer.
A.—As I was going home I took them along with me.
Q.—Once again is that not an indication of reluctance, to delay theinevitable of having to see your husband murdered ?
A.—No. 3
Q.—When you saw his glasses in that pool of blood what did you do ?A.—I went in to see what happened.
Q.—Is that all ?
A.—Yes. I started crying along with my two children.
Q.—Please listen to my question. When you saw his glasses in thatpool of blood in the verandah what did you do ?
A.—I did not do anything hut I went in.
Q.—Was that not the time to weep for your husband %
A.—Yes. 4
Q.—-That was the last time you had seen your husband alive 1A.—Yes.
Q.—If you did love him as you say, could you have ever forgottenthat ? The thing would have been haunting in your mindtill this morning ?
A.—(No reply).
Q.—You saw him then. That was the last occasion 1A.—(No reply).
Q.—Hid you weep when you went to the Police Station ?
A.—Yes. 6
Q.—I must put it to you, was this weeping any part of the pretenceyou were carrying out ?
A.—No. «
Q.—The children were there in the house. Why did you not sendAlice to the children %
A.—She was there with me.
Q.-—Why did it not strike you to say, My two children are there;let this woman go and be with them ?
A.—(No reply).
Page 523.* Page 526.
Page 524.6 Page 527.
Page 525.* Page 528.
CA-NEKEKATNE J.—The King v. Dharmasena
509
Q.—I do not want to be too unfair to you. Did you think thatMrs. Wijesekera was looking after them ?
A.—Yes.
Q.—Mrs. Wijesekera was a teacher and had a job to do. Did younot think that your servant could have looked after them ?
A.—She told me that she would look after them till I returned ”. 1
It is, of course, always proper for a Judge—he has the power and itis his duty at times—to put such additional questions to the witnessesas seem to him desirable to elicit the truth. The part which a Judgeought to take while witnesses are giving their evidence must, of course,rest with his discretion. But with the utmost respect to the Judge,it was, I think, unfortunate that he took so large a part in examiningthe appellant. Though he was endeavouring to ascertain the truth,in the manner which at the moment .seemed to him most convenient,there was a tendency to press the appellant on more than one occasion.The importance and power of his office, and the theory and rule requiringimpartial conduct on his part, make his slightest action of great weightwith the jury. If he takes upon himself the burden of the cross-examina-tion of the accused, when the Government is represented by competentcounsel, and conducts the examination in a manner hostile to the accusedand suggesting that he is satisfied of the guilt of the accused, as some ofthe questions do, the impression would probably be produced on theminds of the jury that the Judge was of the fixed opinion that the accusedwas guilty and should be convicted. This would not be fair to theaccused, for she is entitled to the benefit of the presumption of innocenceby both Judge and jury till her guilt is proved. If the jury is inadvertent-ly led to believe that the Judge does not regard that presumption, theymay also disregard it.
Mr. Wijemanne contends that the Judge was, at the moment referredto (P. 529), endeavouring to get an explanation from the accused andthus to help her—he points to the question which followed these words.On the other hand, there is the next question. The effect of a fewisolated questions to which objection can well be taken may not be suchas to disturb a verdict where there is evidence to support it, and a fairand proper charge, but the number and nature of the questions mayfar out-weigh the good that is capable of being done by the use of thephrase, “it is a matter for you ”. An act of this kind of the Judgecomes within the very wide words “ any other ground ” (section 5 (1) ) 2,so that the appeal should be allowed accordingly as there is or is not amiscarriage of justice. There is such a miscarriage of justice whenthe Court is of opinion that the examination of the accused by the Judgemay reasonably be considered to have brought about that verdict, andwhen, on the whole faets and without this attitude of the Judge, thejury might fairly and reasonably have found the appellant not guilty.Then there has been not only a miscarriage of justice but a substantialone because the appellant has lost the chance which was fairly open toher of being acquitted, 3 and as the Court has power to grant a newtrial, an order to that effect should be made. 4
Re-trial ordered.
Page 529.3 Cf. P. v. Paddy.
Section 5 (1) of Ord. No. 23 of 1938.* Section 5 (2) Proviso.
!•J. 2T. A 90970 (8/49)