The King v. Don Robert alias Beera

018-NLR-NLR-V-42-The-King-v.-Don-Robert-alias-Beera.pdf


The King v. Don Robert alias Beera.
73
[Court of Criminal Appeal.]
1940Present: Moseley S.P.J., Hearne and Cannon JJ.
The King v. Don Robert alias Beera.
53—M. C. Colombo, 2,969.
Failure to disclose defence in lower Court—Comment by Judge in summing upComment permissible with care and fairness to the accused—Nomisdirection.
Comment by a Judge in his summing-up to the jury on the failure ofthe accused to disclose his defence in the lower Court, when addressedby the Magistrate in terms of section 160 of the Criminal ProcedureCode, may be made in a proper case provided the observations are madewith care and fairness to the accused.
Where a Judge, while pointing out to the jury that the accused hadfailed to disclose his defence before the Magistrate, proceeded to statethat it was not obligatory upon the accused to say anything and thathis failure to do so did not mean that the defence put forward at the trialwas false,—
Held, that there was no misdirection.
T
HIS was an appeal from a conviction by a Judge and jury beforethe 3rd Western Circuit.
S. – Sabapathipillai, for the accused, appellant.—The trial Judge’sadverse comment on the failure of the accused to disclose his defencein the Magistrate’s Court was a serious misdirection. In the CriminalProcedure Code, prior to 1938, section 295 (2) provided that an inferencecould be drawn from the silence of the accused. Sections 295 and 155have been replaced by section 160 of the amended Criminal ProcedureCode (Cap. 16) which is silent about any inference to be drawn.
“ The cardinal principle of English criminal practice is that an accusedperson is entitled to maintain a sullen silence.” The interrogation of theaccused is not an ordeal through which the accused must pass, but aprivilege to which he is entitled. (Vide R. v Maybrick1, R. v. SittamrbaramDias’ Commentary on the Criminal Procedure Code.) The reasonfor repealing section 295 (2) was because it was felt that the sectionwas used to the disadvantage of accused and also to bring the law intoconformity with English practice. Section 160 confers a clear andunqualified right on the accused to reserve his defence for the trial.The English law on the point can be seen from Naylor', Littleboy*,ParkerSmith and Smith *.
[Moseley J.—It seems to me that the general principle is that it is notimproper for the Judge to comment, provided he does so carefully andfairly.]
That would appear to be the rule as laid down in Littleboy. It cannotbe said that the comment in this case was fair. It was all the moredamaging because it was expressed in the form of an innuendo. Further-more, the relaxation, in Littleboy, of the principle laid down in Naylorshould be restricted to a case where the defence of alibi is put forward ;
• 24 Cr. App. R. 192.
5 24 Cr. App. R. 2.
• 25 Cr. App. R. 119.
1 (1889) Not Brit. Trials 334.« (1918) 20 N. L. R. 257.
3 23 Cr. App. R. 177.
74MOSELEY J.—The King v. Don Robjrt alias Beera.
in a defence of alibi it is necessary that the Police should be given anopportunity, before'trial, of verifying the truth of it. Naylor and Smith,however, uphold the cardinal principle laid down in Maybrick.
E. H. T. Gunasekera, C.C., for the Crown.—All that Naylor decidedwas that no adverse comment should be made improperly about thefailure of an accused to disclose his defence before trial. Legitimatecomment can, however, be made. Littleboy provides a good illustrationof adverse comment made properly. Distinction should be drawnbetween using the silence of the accused as evidence to support theprosecution and as evidence to test the truth of the defence.
It is significant that under section 233 of the Criminal Procedure Codeit is imperative that any statement of the accused recorded by theMagistrate shall be put in at the trial. There is no reason, therefore,why the jury should not be told that no statement was made by theaccused.
S. Sabapathipillai, in reply.
Cur. adv. vult.
November 8, 1940. Moseley J.—
The appellant, who also applies for leave to appeal on the facts, wasconvicted on October 7, of murder and sentenced to death. The mainground of appeal is that in the summing-up the learned trial Judgecommented adversely upon the fact that the accused had not disclosedhis defence in the lower Court when addressed by the Magistrate in theterms set out in section 160 of the Criminal Procedure Code. Theremaining grounds of appeal, and the grounds upon which theappellant asked for leave tb appeal on the facts, appeared to us to bewithout substance and we invited Counsel for the Crown to address usonly on the above-mentioned point. The application for leave to appealon the facts was refused.
The passage in the charge to which the appellant takes exception is asfollows : —■/
“ I may say that an accused person is first of all charged in theMagistrate’s Court. —Evidence is taken against the accused, and at theclose of the case , the Magistrate tells him that he could, if he desires,say anything he has got to say by way of defence. He is not obliged tosay, but he could if he wanted. Well, the accused then made thisstatement, I believe : “ I am not guilty ”—in those four words. Nowhe comes into this Court and makes this defence. It does not meanthat you should reject the defence because he had not put forward thedefence in the lower Court. That does not follow, but it is a pointwhich you must consider. But if after giving your minds to thequestion that the accused simply said “I am not guilty” you feelthat you should accept the defence put forward by the defence now,you will, of course, accept it. It does not mean that the defence nowput forward is false.”
Counsel contended that section 160 of the Criminal Procedure Codeconfers a privilege upon an accused person and does not impose a duty.He invited us to compare the language with that employed in the oldsection 295 (2), now repealed. In the latter the Magistrate was expressly
MOSELEY J.—The King v. Don Robert alias tieera.
75
authorised to draw such inference as he thought just from a refusalby an accused person to answer or from such answers as he made.According to Dias’ Commentary on the Ceylon Criminal Procedure Code(page 776, note 2) the provisions of this section had been greatly criticisedin the past. The section was repealed in 1938 and Counsel for theappellant invited us to conclude that the repeal thereof and the substitu-tion therefor of the procedure prescribed in the present section 160impliedly takes away from the Court the right to draw any inference,particularly one adverse to the accused, from the latter’s failure todisclose his defence. It seems to us, however, that the amendment wasmade with the intention, and with the effect, of bringing the localprocedure into line with the English practice. -We propose, therefore,to consider this appeal in the light of such decisions of the Court ofCriminal Appeal in England as have been made available to us.
In Naylor1 the trial Judge commented in no uncertain termsupon the failure of the accused to disclose his defence whenbefore the Magistrate. In reply to the usual formula he had said:“ I don’t wish to say anything except that I am innocent.” The learnedRecorder in referring to these words expressed strongly his own viewsas to what might be expected of an innocent man in these circumstances.One of the witnesses for the prosecution in that case was a man who hadbeen indicted together with the appellant and had pleaded “ Guilty.”Although it is not clearly stated in the report, it appears from the laterjudgment in • Littleboy * that Naylor’s failure to disclose hisdefence was employed as being evidence against him in corrobora-tion of the alleged accomplice. As was observed in the latercase “ it is one thing to make an observation with regard to the force ofan alibi, and to say that it was unfortunate that the defence was not setup at an earlier date so as to afford the opportunity of its being, tested-;it is another thing to employ that non-disclosure as evidence against anaccused person and as corroborating the evidence of an accompliceIn Naylor (supra) the Recorder’s summing-up appears from the reportto be an unequivocal adverse criticism of the silence on the part of theaccused, and in that respect the offending words can, in our opinion,be clearly distinguished from those occurring in the charge in the casebefore us.
Counsel for the appellant also referred us to Parker3 in whichit was held that adverse comment on the conduct of one of threeaccused persons in ?rot disclosing his defence was not improper since,though it might be unfavourable to him, it was necessary in fairnessto his co-accused who had disclosed their defence. The case is thereforehardly in point.
In Littleboy (supra), Naylor (supra) was fully discussed, and it was theopinion of the Court that it was not “ intended to lay down the pro-position that a Judge may not, in a proper case, comment on the fact thatthe defence has not been disclosed on an earlier occasion ”. Again,it was observed that “ observations upon the failure to disclose a defence
1 23 Cr. App. ft 177.2 24 Cr. App.R. 192.
24 Cr. App. ft. 2.
7«
The King v. Arthur Fernando.
at some date earlier than the trial have to be made with care and withfairness to the accused person in all the circumstances of the case ..
J*
Smith and Smith1 can clearly be distinguished from the present casein that in the former, while the prisoners had maintained silence beforethe Magistrate, each had previously given his answer to the police andthat answer was before the Court. It could not therefore be said thattheir defence was belated.
Counsel for the appellant was inclined to treat the decision in Littleboy(supra), in which the appeal was dismissed, as creating an exception onlyin the case of the defence of alibi. There is, in our view, nothing in thelanguage of the judgment to suggest such a limitation any more than itappeared to the learned Judges who constituted the Court that thedecision in Naylor {supra) was intended to lay down the propositionthat, in a proper case, a Judge may not comment on the silence of theaccused. The Court declined to assent to a general proposition that inno circumstances, should comment be made, but insisted that anycomment that may be made should be made “ with care and fairness tothe accused ”.
Crown Counsel submitted that the silence of the accused in the Magis-trate’s Court may be employed as a test of the truth of the defence whichhe puts forward at his trial and it seems to us that comment for such apurpose may properly be made, provided that it is made with care andfairness to the accused.
An examination of the language used by the learned Judge in this casesatisfies us that the matter was put carefully and fairly to the jury.He clearly informed then that it was not obligatory upon the accusedto say anything, and that this failure to do so did not mean that thedefence put forward at the trial was false.
We therefore dismiss the appeal.
Appeal dismissed.