THE KING v. G. W. FERNANDO

054-NLR-NLR-V-51-THE-KING-v.-G.-W.-FERNANDO.pdf


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The King v. (?'. If. Fernando
[Court of Criminal Appeal]
1949 Present: Jayetileke S.P.J. (President), Canekeratne J. andGunasekara J.THE KING v. G. W. FERNANDO
Afpeai. 20 of 1949 with Application 72
.S’. C. 4—M. ('. Colombo, 21,960
Court of Criminal Appeal—Evidence—Deposition of absent witness—Admis-sibility—Discretion of trial Judge—Circumstances far reviewing it inappeal.
The discretion of ihe court, under seotion 33 of the Evidence Ordinance,to admit in evidence the deposition of an absent witness on the groundthat the presenco of tho witness cannot be obtained without unreasonabledelay and expense may be reviewed by tho Court of Criminal Appealwhen a manifest injustice is disclosed. *
*(1923) Indian Law Reports, 50 Calcutta 994.
(1924) All India Reporter, 46 Allahabad 851.
a (1930) Alt India Reporter, 53 Allahabatl 742.
226
M VJiTIWiKfc S.VJ.-Th' King v. (1. If. Fernando
Appeal, with application for leave to appeal, against a convictionin a trial before a Judge and Jury.
D. Cosine, with 0. M. da Silva, for the accused appellant.
H. A. Wijemanne, Crown Counsel, with Ananda Pereira, Croivn Counsel,for the Crown.
('nr. adv. vuU.
June 27. 194!*. Jayktu.bkk fvP.J.- •
The main objection taken at tin- argument before us was that- thedeposition of Mr. Peterson, the assistant accountant of the Hong Kongand Shanghai Banking Corporation, was wrongly admitted in evidence.Mr. Peterson left the Island shortly after lie gave evidence in the Magis-trate’s Court and, at the date of tins trial, was employed at the branchoffice of the Corporation at Calcutta. The ’earned Judge admitted thedeposition in evidence under section 33 of the Evidence Ordinance(Cap. 1!) on the ground that the presence of the witness could not beobtained without an amount, of delay and expense which, under thecircumstances of the case, whs unreasonable. Section 331 reads :—
“ Kvidonce given by a witness in a judicial proceeding, or beforeany person authorised by law to take it, is relevant, for the purposeof proving, in a subsequent judicial proceeding, or in a later stageof the same judicial proceeding, the truth of the facts which it states,when the witness is dead or cannot be found, or is incapable of givingevidence, or is kept out of the way by the adverse party, or if hispresence cannot be obtained without an amount of delay and expensewhich, under the circumstances of the case, the Court considersunreasonable.”
Ameer Ali 2 says :—
< : The Court has no discretion as to admitting a deposition when thewitness (1) is dead or (2) cannot be found or (3) is incapable or (4) iskept out of the way; the deposition of such witness is declared tobe relevant and must therefore he admitted. The Court has sucha discretion in the case of the circumstances mentioned at the closeof the section.”
Ameer Alisays further :—
“ The last ground for admitting the* deposition of an absent witnessis governed by three considerations,—the delay, the expense, and thecircumstances of the case. Of the last * one of the chief which the
1 Evidence Ordinance, section 33 {Cap, 1J).* Law of Evidence p. $66.
3 Tsiw of Evidence p. 369.
226
JAYETILEKE S.P.J.—-The King v. 0, 14'. Fernando
Judge has and ought to weigh, is the nature and importance of thestatements contained in the deposition. It would be unreasonableto incur much delay and expense when the facts spoken to in the de-position are of the nature of formal evidence for the prosecution, orsupply some link in the case for the prosecution as to which littleor no dispute exists, or are facts to which other witnesses speak besidesthe deponent, and which witnesses are produced at the trial. On theother hand, it might be very reasonable to submit to much delay andconsiderable expense, when the evidence of the deponent is vitalto the success of the prosecution, or has a very important bearingupon the guilt of the accused ”
In The King v. Beyal Singko 1 the power of this Court to review thediscretion exercised by the trial Judge where a manifest injustice isdisclosed was recognised.
In the present case the main charge against the accused was that hehad conspired witli an unknown person to forge M.r. Peterson’s signatureand that of one of the receiving shroffs to a paying-in counterfoil (Pi}acknowledging the deposit of a sum of Its. 78,000 to the credit, of hisaccount with the Corporation. On this charge Mr. Peterson was a vitalwitness. In the Magistrate’s Court he admitted that the signatureon, PI looked like his but he denied that it was his. Mr. Nagendra.the Government Examiner of Questioned Documents, in his reports P2Kand P27 stated that he was unable to say definitely whether PI was aforgery but in the witness box he said “ I reached the opinion that PIis a forgery.” The evidence on deposition (A5) of Mr. Muthukrishna.an expert on handwriting, shows that Mr. Muthukrishna was of opinionthat PI was not a forgery. In view of the similarity between the im-pugned and genuine signature of Mr. Peterson, and in view of the conflictof evidence between the two experts, we think that, in the interests of theaccused, the jury should have been given the opportunity of seeingMr. Peterson in the box.
No evidence was led as to what delay was likely to be occasioned bya postponement of the trial and as to what expense would have to heincurred to procure the attendance of Mr. Peterson. Having regardto the fact that Calcutta is about 12 hours flying distance from Ceylonwe do not think that the delay or expense would be very much.
In Empress of India v. Mula * it- was held t hat it is only in extremecases of delay and expense that the personal attendance of a witnessshould be dispensed with.
We are of oplniou that the deposition of Mr. Peterson was inadmissibleunder the circumstances of this case. We would set aside the convictionand sentence and send the case hack for a fresh trial.
* (J946) 48 N. L. R. at p. 25.
Sent back for fresh trial.» /. L. R. 2 AU. at p. 548.