WlJE ?E WABDBNE J.—The King v. Ferdinands.
1944Present: Wijeyewardene J.THE KING v. FERDINANDS et al.
46—M. C. Matara, 49,741.
Evidence—Several accused charged jointly with conspiracy to commit or abet theoffence of giving false evidence—Additional evidence lei for defencethrough Crown witness under cross-examination—Official witness calledby defence to produce document—Examined by Counsel for other accused—Crown's right of reply.
Where,in a trialbefore the Supreme Court, additionalevidence is Jed
for thedefence through aCrownwitness,whilst undercross-examination
from a document produced by fhe witness, the "Crown has the right ofreply.
Wherean officialwitness,whois calledby one ofthe accused to-
produce a document, is examined by Counsel for the other accused withregard to other entries in the document, the Crown has a right of replyagainst the other accused as well.
The fact that one accused whilst giving evidence incriminated otheraccused does not deprive the Crown of the right of reply.
The order in which Counsel should address the Jury indicated.
Quaere,whether the Crownhas aright ofreply againstall the accused r
where several persons are charged and some of them only call witnesses.
N this case the accused were indicted jointly before Wijeyewardene J.
and a Jury with conspiracy to commit or abet the offence of giving
false evidence in a judicial proceeding.
Nihal Gunesekera (with him Vernon Wijetunge), for the first accused.
E. Chitty (with him H. Wanigatunge), for the second accused.
Sri Nissanka, K.C. (with him J. Femando'pulle and AnandaPereira), for the fourth accused.
U.A. Jayasundere (with him S. E. J. Fernando and J. V. T. de Fon~seka), for the fifth and seventh accused.
The third, sixth and eighth accused were undefended.
E. H. T. Gunasekera G.C. (with him E. L. W. de Zoysa, C.C.), for theCrown.
August 14, 1944. Wijeykwardeke J.—
The questions I have to decide relate to the order in which Counselshould address the Jury.
The accused in this ease are indicted jointly for the offence of conspiracyto commit or abet the offence of giving false evidence in a judicialproceeding.
The Crown Counsel called as one of his witnesses Mr. Vitharana, theReeordkeeper of the Magistrate’s Court of Matara. In answer to theCrown Counsel, Mr. Vitharana read (a) the evidence given by some of the
WI.TEYEWABDENE J.—The King v. Ferdinands.
accused from the record of the proceedings in Inquest No. 50 of the Magis-trate’s Court, Matara (P 1), and (b) the evidence-in-chief of the 1st and 4thaccused from the record of the non-summary proceedings in caseNo. 43,107 of the Magistrate’s Court, Matara (P 21). He also referred tothe report of Mr. Teembruggen to the Magistrate, the private plaintfiled by U. P. Charles, the letter sent by Mr. Wijetunge, the chargesframed in M. C. Matara, 43,107, and some other matters.
Mr. Vitharana was cross-examined by Mr. Chitty, Counsel for the 2ndaccused, and he read from P 1 a.t Mr. Chitty’s request the evidence of awitness, U- It- Charles, and certain passages in the evidence of the4 1staccused. He was also made to disclose the evidence with regard, to therelationship between Hinni, the deceased, and certain persons as shownin P 1.
At the request of Mr. Sri Nissanka, Counsel for the 4th accused,Mr. Vitharana read passages from the evidence of a witness Martin asappearing in P 21.
When the Crown Counsel concluded leading his evidence Mr. NihalGrunesekera called the first accused and a number of witnesses includingMr. Quyn, the Reeordkeeper of the Supreme Court. He got Mr. Quynto read certain passages from the evidence of Ariyadasa and Sahabanduas appearing in the notes of evidence taken at the trial in S. C. No. 51,M. C. Matara, No. 43,107.
At the request of Mr. Sri Nissanka, who cross-examined him,Mr. Quyn read passages from the evidence of two other witnesses, Martinand Andrayas. It should be noted that Mr. Vitharana and Mr. Quynwere not giving evidence on matters within their personal knowledgebut were merely reading passages from the records of certain judicialproceedings.
• At this stage I wish to refer to the stenographer’s note made justbefore Mr. Sri Nissanka cross-examined the 4th accused. That notedoes not set out clearly what happened. Mr. Sri Nissanka said he wouldlike to get Mr. Nihal Gunesekera to ask Mr. Quyn to read the passagesfrom the evidence of Martin and Ariyadasa. I told him that I could notallow that to be done. Mr. Sri Nissanka then said that he presumed thathe would be allowed to cross-examine the witness and I replied that hewould be cross-examining the witness.
After the 1st accused’s case was closed, the 2nd, 4th, and 5th accuseddid. not call any evidence, the 3rd accused called two witnesses, whilethe 6th accused gave evidence and called one witness.
While giving evidence “ in his own behalf ” the 6th accused madestatements inculpating the other accused. The 1st, 2nd, and 3rd accusedcross-examined the 6th accused. I gave the accused an opportunity forleading such evidence as they thought necessary to meet the evidencegiven by the 6th accused, but no such evidence was, in fact, called.After the 6th accused closed his case, the 7th and 8th accused closedtheir cases without calling any evidence.
The two questions for decision are: —
Can the Grown Counsel claim the right of reply as against the 2ndand 4th accused on the ground that they had led evidencethrough Mr. Vitharana and Mr. Quyn?
WIJEYEWAKDENE 3.—The King c. Ferdinands.
Is the Crown Counsel’s right of reply affected by the fact that the6th accused incriminated the other accused "while giving evidenceafter the close of the case for the prosecution?
It is convenient to discuss question (1), as if there is only one accused,says the 2nd accused. In such a case the Crown Counsel is entitled toreply, if the defence has led evidence other than the evidence of theaccused (see sections 287 (2) and 296 (2) of the Criminal ProcedureCode). Now “ Evidence ” as defined in section 8 of the Evidence Ordi-nance includes “ documentary evidence ”, that is " all documents pro-duced for the inspection of the Court ”. Thus, if documentary evidenceis addr^ce’d by the defence, the Crown is entitled to the right of reply.Conflicting views have been taken by the various.High Courts in Indiaon the question whether the Crown can claim such a right, when such** documentary evidence ” is led through a Crown witness while undercross-examination. The Madras and Allahabad High Courts haveanswered the question in the affirmative and the Bombay High Courttoo has expressed the same view in a number of cases. (See Queen-Empress v. G. W. Hay field and- another1; Queen-Empress v. Venkata-pathi and others2; Emperor v. Bhopatkar3). Sections 234 and 237 ofour Code differ, however, from the corresponding sections 289 and292 of the Indian Code of Criminal Procedure, 1882, and section 292 asenacted in 1882 was modified by the Code of 1898 and was replaced by anentirely new section in 1923. Our courts too have recognized this rightin such circumstances, and the course of practice has been to allow Counselfor the Crown to address the Jury summing up the evidence againstthe accused and commenting on the evidence led for the defence afterthe address of the Counsel for the defence.
Now when the Crown Counsel examined Mr. Vitharana and provedthrough him certain facts as recorded in P 1 and P 21, the Crown did not,thereby, produce the entire records P 1 and P 21 for “ the inspectionof the Court ”, as in that case the Jury would have been entitled to readand examine the whole mass of evidence appearing in those records.Mr. Chitty, therefore, adduced fresh documentary evidence when he placedbefore the Court the evidence of other persons and proved some otherfacts appearing in P 1. No doubt the “ documentary evidence ” ledby the Crown Counsel and the “documentary evidence” led byMr. Chitty appear on a number of sheets bound together and referred toas the record of certain proceedings. That fact does not, however,make the evidence led by the Crown Counsel and the evidence led byMr. Chitty one item of evidence. In this connection I would refer to Gregoryv. Tavemor* decided under section 5 of the Criminal Procedure Act(88 & 89 Viet. c. 18) corresponding to section 146 of the EvidenceOrdinance. That decision holds that, if a witness refreshes his memoryfrom entries in a book, Counsel may cross-examine on those entrieswithout making them his evidence and the jury may see them if theythink fit, but, if Counsel cross-examine as to other entries in the samebook, he makes them his evidence.
1 (1892) 14 All. 212.3 (1906) 30 Bom. 421.
(1888) 11 Mad. 339.4 172 E. S. 1241.
WIJBYEWABDENE J.—The King v. Ferdinands.
What I have said above applies to the cross-examination of Mr. Vitha-rana and Mr. Quyn by the Counsel for the 4th accused.
The fact that there are several accused in this case and that Mr. Quynwas called by the 1st accused does not affect this question.
For the reasons given by me I answer question (1) in the affirmative.
It may become necessary to determine in an appropriate case whetherthe Crown Counsel does not have a right of reply against all the accusedwhere, as in the present trial, several persons are charged and some ofthem call witnesses. In such a case the decision in The King v. Joronis1would have to be considered. Section 296 (2) of the Criminal ProcedureCode reads : —*
■' When at any trial the evidence of the defence consists only of theevidence of the person or persons charged, as the case may be, the prose-cution shall not have the right of reply.”
The words underlined by me, read with section 237 (2), favour the viewthat the Crown is entitled to a right of reply against all the accusedwhere there are several accused and .gome accused alone have calledwitnesses, as in this trial. The authorities cited in Archibald’s CriminalPleading (31st Edition) at page 181 are to the effect, that under the EnglishLaw the Crown has such a right only where the evidence called by oneaccused is applicable to all.
The second question arises from the fact that the 6th accused’s evidenceinculpates all or most of the other accused. It is contended that theevidence given by the 6th accused became “ tacked, as it were, to thecase for the prosecution ”. (See Judgment of Jervis C.J. in Regina v.Burditt and others’1) and that, therefore, the Crown should be regarded ashaving led evidence in rebuttal, giving the defence thereby the right tothe last word. I find it difficult to follow this reasoning. It is, to saythe least, somewhat unsatisfactory to build a legal argument on a phraseoccurring in a judgment. I do not think the phrase means anythingmore than that the Crown could avail itself of the evidence given byone accused against another (see The King v. Hawden and Ingham3)just as much as it could make use of the evidence given by a defencewitness even against the accused calling that witness. If the contentionof Mr. Chitty is correct, it would lead to most startling results. Supposethere is only one accused in the case, and that at the close of the casefor the prosecution the accused gives evidence, and calls five witnessesone of whom proves hostile to the accused. Suppose further that hiscredit is impeached by the accused himself as set out in section 155of the Evidence Ordinance. And yet, according to this argument, theaccused can claim that the Crown has, in these circumstances, lost the rightgiven to it under section 237 (2) of the Criminal Procedure Code. Thecases cited by the defence (eg., Regina v. Woods and May4 -, Regina v.Burditt and others (supra) show merely that the accused against whomevidence is given by another accused or a witness of that accused wouldhave the right to cross-examine such accused or witness and also theright of addressing the Jury after such accused.
1 (1921) 22 N. L. R. 468.1 (1855) 6 Cox Rep. 458.
» (1902) 1 K. B. 882 at 887.4 (1853) 6 Cox Rep. 224.
Sangarapillai and Prasad, Collector of Customs.
I answer .the second question in the negative.
The Crown Counsel stated to me that he did not desire to exercisehis right of reply as against the third and sixth accused who were un-defended. I have, however, to consider the interests of the other accused.As the defence has not communicated to me any agreement among theaccused as to the order of speeches, I direct that the Jury should beaddressed first by the sixth accused and then by Mr. Nihal Gunesekera,Mr. Chitty, the third accused, Mr. Sri Nissanka, Crown Counsel,Mr. Jayasundere and the eighth accused.
THE KING v. FERDINANDS et al