121-NLR-NLR-V-45-THE-KING-v.-FERDINANDS-et-al..pdf
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WIJBYBWAJEtDBNB J.—The King v. Ferdinands.
1944Present: WIjeyewardene J.THE KING v. FERDINANDS et al.
46—M. C. Matara, 49,741.
Evidence,—Evidencegiven by an accused incriminating himself and another
accused—Admissibility—Evidence Ordinance, s. 30.•
Evidence given by an accused incriminating himself as well as aco-accused is admissible against the co-accused.
The fact that such evidence is given is in itself no ground for orderingseparate trails.
T
HIS was a case heard before Wijeyewardene J. and a Jury in thethird Western Circuit.
Nihal Gunesekera (with him Vernon Wijetunge), for the first accused.
G. E. Chitty (with him H. Wanigatunge), for the second accused.
H. Sri Nissanka, K.C. (with him J. Femandopulle and Ananda Pereira),for the fourth accused.
U.A. Jayasundera (with him S. E. J. Fernando and J. V. T. deFonseka), for the fifth and seventh accused.
The third, sixth and eight accused were undefended.
E. H. T. Gunasekera, G.G. (with him E. L. W. de Zoysa, G.C.), for theCrown.
August 10, 1944. Wijeyewardkne J.—
The eight accused are charged with the offence of conspiracy to commitor abet the offence of giving false evidence in a judicial proceeding Thesixth accused is now in the witness box giving evidence “ in his own. behalf ”. In the course of his evidence he inculpated several of theother accused and then commenced to speak of what happened on March21, 1942. At that stage the Crown Counsel intimated to me that it wouldbe desirable to ask the Jury to retire, as, perhaps, I might have to considercertain questions of law in respect of the evidence which the sixth accusedmight proceed to give. I asked the Jury to retire and directed the sixthaccused to go on with his evidence. That evidence was as follows: —
“ When he, the first accused asked me that question I told him thatI knew Abdeen. Then he asked me ‘ You know that Abdeen is myinformant? ’ and I said, ‘ Yes, I know it Then he said ‘ When Iwent on leave the second accused took Abdeen to the barracks andassaulted him. Hinniappu is also one of my informants. He wastaken to the barracks and he was thrashed and killed there ’. Thenhe uttered a threat saying ' I will do a nice thing and he went awaywith the headman Burampy. At about 5 or 5.30 p.m. that day thealarm bell was rung and all the police officers fell in and assembledin the recreation room in their shorts and banians. The A. S. P. camein with Dingiya ’ ”.
WDiSXKWAJiUiSJNi!; J.—The Am; v. feratnantU.
4t>_L
Before giving my ruling as to the admissibility of that evidence I askedthe defence Council whether they wished to be heard. The Council forthe second accused, thereupon, contended that the evidence so given wasinadmissible and then proceeded to submit that the entirety of theevidence given, by the sixth accused would be highly prejudicial to all theother accused and moved—
that I should direct the sixth accused to stand his trial separately,
that the other accused be tried in this case,
that I should direct the Jury to ignore all the evidence given by the
% sixth accused.
After the, luncheon interval the Counsel for the second accused made analtema'jive submission, namely, that X should confine the present caseto the sixth accused and direct the other accused to be tried in otherproceedings. The Counsel for the first, fourth, fifth and seventh accusedadopted the argument of Mr. Chitty. The third, sixth and eighthaccused did not make any submission.
I have considered the matter and I am unable to adopt either of thesuggestions made by the defence. The evidence given, by the sixthaccused before the Jury retired was admissible. The evidence givenby an accused person exculpating himself and inculpating his co-accusedis admissible under our law. The evidence given by the sixth accusedin this case may incriminate not only the other accused but also himself.He may be giving this evidence in the honest belief that he is entitledto an acquittal, if he acted on the advice of his superior officers. He mayalso be giving this evidence, as he thinks that in any event it may have abearing on the sentence that may be passed on him. Whatever hisreasons may be, there can be no doubt as to the admissibility of thatevidence, as under our law a confession made by an accused in the witnessbox affecting himself and his co-accused is not shut out by section 30 ofthe Evidence Ordinance (see Rex v. Ukku Banda 1). The sixth accusedwho is giving evidence has the right to do so ‘ ‘ with the like effect andcon sequences as any other witness ”.
As the evidence in, question is admissible, I do not think it open toadvance an argument on the ground that such evidence is prejudicialto the other accused. I am of opinion that this is a case in which I shouldnot allow the application made by the defence.
The document P 9 which contains a material part of the evidencegiven by the sixth accused before the special Commissioner in. February,1943, was included in the list of documents filed with the indictment.At the very commencement of this trial the Counsel for the secondaccused inquired whether the Crown (Counsel intended to refer to it in thecourse of his opening address, and the Crown Counsel gave an undertakingthat he would not refer to it. In the murder case to which referencehas been made in the course of these proceedings the sixth accusedwas one of the accused. There he appears to have made a statementfrom the dock similar to the statement in the document P 9.
Though my attention was not drawn to these matters before theCounsel for the second accused made the present application, they musthave been well within the knowledge of the Counsel for the defence.
i (1923) 24 N. L. R. 327.
-SJ52
Wickremasinghe and William.
In fact, when I asked Mr. Jayasundere-who appears for the fifth andseventh accused whether he was leading evidence on behalf of his clientshe said that he would n.ot call evidence for the fifth accused but thathe would decide whether he should call evidence on behalf of the seventhaccused after the sixth accused has given evidence. Moreover, in thecourse of the trial the sixth accused made certain allegations in theabsence of the Jury that some of the accused were trying to tamperwith the witnesses for the Crown.
In these circumstances I find it difficult to understand why the presentapplication, is made for the first time at this stage.
Gounsel for the second accused said that, if they realized that thesixth accused was going to give evidence against them, the other accusedwould have lead evidence to disprove the truth of what the sixth accusedwas now saying, before they closed their cases. I am prepared, as amatter of indulgence, to give the first, second, third, fourth and fifthaccused an opportunity to lead such evidence.
The following evidence given by the sixth accused in the absence of theJury will not be placed before the Jury : —
" Then he said ‘ When I went on leave the second accused toolAbdeen to the barracks and assaulted him. Hinni Appu is also one ofmy informants. He was taken to the barracks and he was thrashedand killed there ’. Then he uttered a threat saying ‘ I will do a nicething ’ and he went away with the headman Brumpy.”