The King v. G-raniel Appuhamy.
Present: Dalton S.P.J-, Maartensz and Koch JJ.
THE KING u. GRANIEL APPUHAMY101—P. C. Chilaw, 44,534.
Misdirection to jury—Defence of alibi—Statement to police—Accused cross-examined on statement—Denial of statement—Failure of Crown to provestatement—Charge to jury—Failure of Judge to ask the jury to excludethe statement.
Where a statement alleged to have been made by an accused personto the police was put by the Crown to the accused in order to discredithim when giving evidence on his behalf in support of his plea of an alibi,and where the statement, on being denied by .the accused, was not legallyproved by the Crown,—
Held, that the failure of the presiding Judge to direct the jury in hischarge to disregard the unproved statement, in considering the evidencefor the defence, amounted to a misdirection.
HIS was a case stated by the Commissioner of Assize, Western
JL Circuit, under the provisions of section 355 (1) of the CriminalProcedure Code.
The facts are stated in the reference as follows: —
“ When the accused was giving evidence on his own behalf in supportof his plea of an alibi, Crown Counsel, with the intention of discreditingthe evidence of the accused, put to him a statement, alleged to have beenmade by him to the prosecuting Sub-Inspector of Police, E. G. Arendtsz,to the effect that he had heard that a drunken man was lying fallen onthe road, and had gone to the spot and seen the man there, and later sawhim being removed to the Police Headman’s house. Counsel for thedefence objected, under section 25 of the Evidence Ordinance to thealleged statement being admitted, but I overruled the objection, on theauthority of King v. Cooray as the statement was not in the nature ofan admission or confession, but an exculpatory one, and I concluded theprosecution -intended to prove it. In my charge to the jury I made^reference to this alleged statement in the following terms: —
‘ The accused is alleged to have made a statement to the Inspectorthat he heard a drunken man was lying fallen on the road, and he wentthere and saw him, and later saw him being removed to the PoliceHeadman’s house. I allowed the questions to be put to the accusedas the statement was not in the nature of an admission, or confession,and the questions were put with the object of discrediting the witness.The accused has denied making this statement. You have to make upyour minds whether the accused was present and assaulted the injuredman, as alleged, or was at the local option polling station at thetime.’
“ As the statement had not been proved, my purpose in referring to itwas to indicate to the jury that it was only a statement, alleged to havebeen made, by the accused, which he had denied; that it had not beenproved, and there was no evidence therefore that it had been made
■ 28 N. L. R. 74.
The King v. Graniel Appuhamy.
“ Learned Counsel for the defence, however, informed me that he, at thetime, made a note of my reference to this statement, and that I hadomitted to mention to the jury that there was no evidence of its havingbeen made, and I, therefore, allowed the application.
“ 5. It was contended by Counsel for the defence that I should, inexpress terms, have told the jury that there was no proof that the state-ment had been made, and that they should exclude it from their purviewwhen considering the evidence for the defence.
“ The following case would therefore arise for consideration: —
‘ Where a statement, alleged to have been made to the police by theaccused, when put to the accused by the Crown in order to discredithim when giving evidence on his own behalf in support of his plea ofan alibi, is denied by the accused and the said statement although itdiscredits the evidence of the accused in respect of his plea, is notlegally proved by the Crown, does the failure of the presiding Judgeexpressly to direct the jury, in his charge to them, to exclude the saidimproved statement from their purview when considering the evidencefor the defence, amount in law to a misdirection? ’ ”
Sri Nissanka (with him Colvin R. de Silva and Senaratne), for accused—The Inspector, who was a witness for the Crown, should have been calledto prove the making of the statement by the accused. The presidingJudge drew the jury’s attention to the contradiction between the evidenceof the accused before the jury and his statement to the Inspector. It isdifficult to gauge how far the mind of the Jury was affected by the state-ment alleged to have been made by the accused.
The verdict of the jury should not be given on any evidence exceptthat which the law allows—see R. v. Gibson'. The conviction is bad, ifthe jury has been directed on legally inadmissible evidence; and thisnotwithstanding that there was other evidence properly admitted andsufficient to warrant a conviction.
The evidence is inadmissible unless the accused’s statement was proved.We have only the bare denial of the accused.
Counsel cited R. v. Dyson’ and R. v. Nortoncases based on section 4,sub-section (1) of the English Criminal Appeal Act of 1907.
There should be a full direction by the Judge to the jury—see R. v.Wann *. The direction by the Judge here amounts to a misdirection.
J. E. M. Obeyesekere, Acting Deputy S.-G. (with him Kariapper, ActingC.C.), for the Crown.—There is no misdirection, but an omission to direct.Even if there is a misdirection, it is not such a misdirection as hasoccasioned a failure of justice. One has to look at the whole case andsee what verdict was possible without this particular evidence.
The Judge on a certain point omitted to direct the jury. Where thereis merely an omission to direct, we have to see whether such omission wason a material point.
As to what is a misdirection see King Emperor v. Minhwasayomattersof prime importance should not be omitted from the Judge’s charge to■ (1887) 18 Q. B. D. 537.■■ (1910) 2 K. B. 496.
* (1908) 2 K. B. 454.■« 107 L. T. 462.
3 11 Crim. Law Journal of India, p. 13.
DALTON S.P.J.—The King v. Graniel Appuhanvg.
the jury. Non-direction is not a misdirection, unless it is on a point ofprime importance. See also R. v. Fattechand
“ Improper advice given by a Judge to a jury amounts to a mis-direction ”—see R. v. Buksh3.
It may be conceded that Crown Counsel’s intention in cross-examiningthe accused on this statement was to disprove the alibi. But the Judge’somission to direct was not on a material point. On the jury’s verdictit shows that they accepted the case for the Crown, and that they rejectedthe accused’s version.
Even where a misdirection exists, the High Court need not orderfurther inquiry, but may consider the evidence on the whole case andenter a verdict—see King Emperor v. William Smither *.
In King v. Henry Beecham *, inadmissible evidence of accused’s badcharacter was put in; but the Court, having regard to the other evidencein the case, held that no substantial miscarriage of justice had occurred.
Looking at the case as a whole, what is a proper verdict? Vide judg-ment of Lord Reading in R. v. Williams and Woodley
Counsel also cited R. v. Amolis Perera', where on a reference undersection 355 of the Criminal Procedure Code, a new trial was ordered.
Sri Nissanka (called upon to reply on the question whether therewas a substantial failure of justice).—When once it is established thata direction is improper, it becomes very difficult to decide whether theverdict is right or wrong.
December 12, 1935. Dalton S.P.J.—
This matter came before the Court in the form of a case stated by the■Commissioner of Assize, Western Circuit, Colombo, under the provisionsof section 355 of the Criminal Procedure Code.
At the close of the argument on the 12th instant we held that there wassuch an omission to direct the jury as amounted, in the circumstances,to a misdirection, and we quashed the conviction stating that the reasonfor our conclusion would be put in writing later.
The facts are set out in the case stated. The accused was indicted on acharge of attempted murder, and was convicted of the offence of volun-tarily causing grievous hurt, being sentenced to undergo five years’rigorous imprisonment.
At the close of the case for the prosecution the accused himself wentinto a witness-box and called other witnesses on his behalf. Thedefence set up was an alibi, for the purpose of proving he was not in thevillage at the time the injured man received his injuries, but some 4£ milesaway attending a local option poll.
In the course of the cross-examination of the accused by Crown Counsel,the latter put to him a statement which Crown Counsel suggested he hadmade to a Sub-Inspector of Police who was inquiring into the offence.This statement, it was suggested, was inconsistent with his defence thathe was elsewhere, but was to the effect that he was at home in the village
and saw the injured man lying on the road.
1 5 Bom, if. C. Rep. Si.
x (1806) 5 Southerland's W. R. (Crim.)
80, at p. 90.
3 (1903) 26 I. L. R. t.lLirf.l J, at pp. 8 and 16.
* (1921) 3 K. B. 464.s (1920) L. J. 89 K. B. D. 557.« 28 N. L. R. 481.
DALTON S.P.J.-—The King v. Graniel Appuhamy.
The shorthand note of the proceedings contains the following record,
“ Crown Counsel desires to put to the witness his statement to the police—proceeds to read out that statement Defending Counsel, Mr. SriNissanka, thereupon got up and objected, his reason being that a state-ment alleged to have been made by accused to the Sub-Inspector of Policewas inadmissible. Counsel states he was not aware of the contents of thestatement at the time, but was under the impression that Crown Counselmight be seeking to prove a confession, which' would be inadmissible,under section 25 of the Evidence Ordinance. His objection was over-ruled and the cross-examination continued. This argument took placein the presence of the jury. Crown Counsel thereupon put the whole ofthe alleged statement to the accused, reading it from the Police Inspector’snotebook. The accused stated he had made a statement to the policebut denied it was the statement read out to him.
There is no question now as to the inadmissibility of the evidence thatCrown Counsel sought to extract from the accused. His Counsel concedesthat the learned Commissioner was correct in overruling his objection.It is clear, however, that the learned Commissioner concluded that, in the.event of the accused denying the truth of the statement, the prosecutionintended to prove it. In our opinion, the questions based upon thisstatement should not have been put to the accused at all, unless theprosecution was prepared to go further in the event of the accused denyinghe had made the statement.
At the close of the defence no request was made by the prosecution tocall any evidence in rebuttal, although the Sub-Inspector in question wasone of the Crown witnesses and had given evidence earlier.
In the course of his summing up to the jury, the learned Commissionerreferred to this alleged statement by the accused to the police. He toldthem why he allowed the questions to be put to the accused, as thestatement was not in the nature of a confession or admission, but theywere put with the object of discrediting him. He pointed out that theaccused denied making the statement, but he failed to direct them thatthere was no evidence at all that he had ever made such a statement.The learned Commissioner states his intention in referring to the state-ment was to indicate to the jury that there was no evidence that it hadbeen made, but he omitted to do so. He then pointed out that they hadto make up their minds whether the accused was present and assaultedthe injured man, as the Crown alleged, or was at the local option pollingstation at the time.
The failure to direct the jury that there was no evidence at all that theaccused had stated he was on the scene, as suggested in the question putto him in cross-examination, was a serious omission. The method inwhich Crown Counsel had put the questions, making use of the. policenotebook, for instance, and reading out a statement, could not, we think,have failed to prejudice accused in the minds of the jury. The impressionleft upon my mind by the notes oh the record and in the case stated isthat at the close of the case it was assumed that the accused had made astatement to the police as regards his whereabouts that evening, the
DRIEBERG J.—Mendis v. Kaithan Appu.
truth of which, however, he’ denied. The jury were not directed thatthere was no evidence at all on this point, except his denial. Thisomission, on a most material point, was a misdirection.
The answer to the question, “ Does the failure of the presiding Judgeexpressly to direct the jury in his charge to them to exclude the saidimproved statement from their purview when considering the evidencefor the defence amount in law to a misdirection? ” must be answered inthe affirmative.
In the event of our coming to that conclusion, Mr. Obeyesekere for theCrown further argued that in effect no injustice has been done to theaccused. It is impossible, in our opinion, to say here that, had the jurybeen directed fully, they would have convicted the accused. We are notsatisfied that they would necessarily have done so. There was someevidence in support of his alibi, given by one of the Crown witnesses. Itis true the jury in a rider censured the evidence of that witness, but it ispossible that rider was influenced by the prejudice that had been causedto the accused by the prosecution, in the attempts to show that hisevidence on the subject of an alibi was not in accordance with a previousstatement he had made to the police.
We were satisfied this conviction could not stand and we made orderaccordingly.
Maartensz J.—I agree.
Koch J.—I agree.
THE KING v. GRANIEL APPUHAMY