021-NLR-NLR-V-46-THE-KING-v.-GEEKIYANAGE-JOHN-SILVA.pdf
HOWARD C.J.—The King v. Geekiyanage John Silva.
73
[Court of Criminal Appeal.]
Present : Howard C.J., Keuneman and Jayetlleke, JJ.
THE KING v. GEEKIYANAGE JOHN SILVA84—M. C. Panadure 27,675.
Accused's failure to give evidence—Charge of murder—Judge's direction thatfailure to give evidence is an element that may be considered—Proof ofcase beyond reasonable doubt—Principle to be applied.
Where in a charge of mOYder the presiding -Judge directed the jury“ that the failure of the accused to give evidence was an element thatthey may take into consideration in discussing whether the Crown hasproved the case beyond all reasonable doubt— ",
Held, that there was no misdirection in law.
The King v. Duraisamy (43 N. L. R. 241) distinguished.
It is within the discretion of a Judge to comment on the failure ot anaccused person to give evidence and the Court of Criminal Appealwill not generally interfere with that discretion.
The comments of the Judge on an accused's failure to give evidenceshould be confined to those cases in which there are special circumstanceswhich an accused only can explain and which therefore call for an 'explanation by him. The failure of an accused to give evidence,though not amounting in law to corroboration of the story of theprosecution, may enable a jury to act where they would not otherwisehave done so.
A
PPEAL against a conviction by a Judge and jury before the4th Western Circuit 1944.
G. E. Chitty {with him S. E. J. Fernando and T. Paramsothy) forthe appellant.
E. H. T. Gunaseliera, C.C., for the Crown.
Cur. adv. mdt.
February 12, 19,45. Howard C.J.—
The only substantial point in this appeal which is from a convictionon a charge of murder is whether the learned Judge has misdirected thejury in the following passage that occurs on pages 26-27 of his charge: —
“ Let us see what evidence, is called for the defence. The prisonerdoes not give evidence. I have told you and Counsel, both for- thedefence and the Crown, have -told you that the burden of proving theguilt of the accused rests upon the Crown, and I have told you that'there is no obligation upon the prisoner to establish his innocence.Then you ask yourselves, ’ “ Has the Crown proved the case 7Have they satisfied you beyond reasonable doubt, first of all, that theprisoner was the man who caused the fatal wound, and secondly,that he had the, specific intention, or in the alternative, the knowledgeabout which -^Tif^re addressed you ? If you – ask yourselves; thatquestion naturally you will say to yourselves, “ Here is the evidenceof two eye-witnesses. What is the evidence for the defence
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HOWARD C.J.—The King v. Geckiyanage John Silva.
Whereas the accused need not give evidence or say anything at all,,the faot that he has not given evidence and contradicted the evidenceof the two eye-witnesses is an element which you will be entitled totake into consideration when you are discussing the question, " Hasthe Crown proved the case ? Has the Crown satisfied us beyondreasonable doubt."
Mr. Chittv, on behalf of the appellant, has contended that the directionto the jury that the fact of the appellant not having given evidence andcontradicted the evidence of the two eye-witnesses is an element whichthey will take into consideration when they are discussing the question“ Has the Crown proved the case ? Has the Crown satisfied us beyondreasonable doubt ” amounted to a misdirection. In support of thiscontention Mr. Chitty cited the case of The King v. Duraisamy ’. Inthat case also the accused failed to give evidence and in commenting onthat fact the learned Judge told the jury that on evidence being adduced,which implicated the accused, the fact that he had not given evidenceentitled them, to draw an inference against him. The Judge did notexplain the nature of the inference. He also said that in deciding theCrown case, whether it had been established beyond reasonable doubt,the jury were to take notice that the accused had not given evidenceat all without pointing out to them that the existence of a reasonabledoubt enured to the benefit of the accused whether he gave evidence ornot. It was held that the principle, that the standard of proof required'in criminal cases remains constant, irrespective of the fact that theaccused has not given evidence, may not have been properly appreciatedby the jury and that there had been a misdirection with regard to theburden of/-proof.
The words used by the learned Judge in this case were that the failureof the accused to give evidence was “ an element that they may takeinto consideration ’’ in discussing whether the case has been provedbeyond all reasonable doubt whereas in The King v. Duraisamy (supra)the words used were that “ they were entitled to draw an inferenceagainst him ”. The discretion vested in a Judge to comment on thefailure of an accused to give evidence cannot be questioned viiftheQueen v. Rhodes 2 where Lord Russell of Killowen states as follows: —
“ The third and last question is whether the presiding Judge hasa right under the Criminal Evidence Act, 1898, to comment on thefailure of the prisoner to give evidence on his own behalf. In thiscase the prisoner was not called; and. the only question that we haveto consider is whether the chairman of quarter sessions had a rightto comment on his -absence from the witness-box. It seems to methat he undoubtedly had that right. There is nothing in the Act.that takes away or even purports to take away the right of the Courtto comment on the evidence in the case, and the manner in which thecase has been conducted. The nature and degree of such comment,fiaust rest, entirely in the discretion of the Judge who tries the case;and it is impossible to lay down any rule as to the cases in which heought or * ought not to comment on the failure of the prisoner
* *3 N. L. B. 241.
(1899) 1 QB. at p. 8S.
HOWARD C.J.—The King v. Geekiyonage John Silva.75
to give evidence, or as to what those comments should be. Thereare some cases in which, it would be unwise to make any such commentat all; there are others in which it would be absolutely necessary inthe interests of justice that such comments should be made. Thatis a question entirely for the discretion of the judge; and it is onlynecessary now to say that that discretion is in no way affected bythe provisions of the Criminal Evidence Act, 1898.”
I would also refer to R. v. Voisin 1
At page 93 Lawrence J. in his judgment states as follows: —
“ The Judge’s comments on the appellant's, not going into thewitness-box and his not calling the woman Roche ' after her dischargewere within his judicial discretion and are not matters for this Courtto review. It was a case demanding explanation by the only personswho could know the facts if ever one could be.”
Again in Kops v. The Queen 3 the Lord Chancellor at page 653 statedas follows: —
“ The majority of the learned Judges of the Full Court have heldthat the comments made by the learned Judge at the trial in this casewere made according to law, and that there was no reason to interferewith the verdict which followed.
Their Lordships see no reason to doubt the correctness of theconclusion at which the majority of the Court arrived. The learnedJudges did not lay down—it was not within the scope of the casenecessary to lay down—any general rule as to- such comments. Theremay no doubt be cases in which it would not be expedient, or calculatedto further the ends of justice, which undoubtedly regards the interestsof the prisoner as much as the interests of the Crown, to call attentionto the fact that the prisoner has not .tendered himself as a witness,it being open to him either to tender himself, or not, as he pleases.But on the other hand there are eases in which it appears to theirLordships that such comments may be both legitimate and necessary.”In R. v. Jane Blatherwick 3 it was'held that, though the fact that theappellant was not called is not of itself corroboration, it entitled a juryto act where perhaps they would not otherwise have done so. InR.-: v. Bernard 4 Darling J. stated in the judgment that it is right thatjuries should know and if necessary, be told, to draw their own conclusionsfrom the absence of explanations by the prisoner.
From the cases I have cited the following principles may be deduced: —
It is within .the discretion of a Judge to comment" on the failure
» of an accused person to give evidence and the Court of CriminalAppeal will not generally interfere with the exercise of thatdiscretion.
The comments of the Judge on an accused’s failure to give evidence
should be confined to those cases in which there are specialcircumstances which the accused can only explain and whichtherefore call -for explanation by him.
1 13 Cr. App. Reps. 89.. ’ 6 Cr. App. Reps. 281.
* (1894) A. C. 650.4 1 Cr. App. Reps. 218.
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SIB JOHN BEAUMONT.—Sellasamy and Kaliamma..
The failure of the accused to give evidence though not amountingin law to corroboration of the story of the prosecution mayenable a jury to act where perhaps they would not otherwisehave done so.
In the present case we do not think that the evidence elicited anyspecial circumstances that called for an explanation from the appellant.On the other hand the learned Judge did not in his charge state thatany particular circumstance or fact called for such an explanation..Nor did he say that from the failure to give evidence the jury mightdraw an adverse inference. He merely said it was an element theymight take into consideration. He was inviting their attention to thefact that the appellant had failed to give evidence and so contradictthe testimony of the two eye-witnesses. This fact might be taken into-consideration and entitled them to convict whereas if the accused hadgiven evidence and denied the story of the eye-witnesses, they mightnot have felt themselves justified in so doing. The charge makes it-clear that the jury are not to convict if they have a reasonable doubt. Inthese circumstances we think there was no misdirection and theappeal is dismissed.
Appeal dismissed.