S3GHOWARD C.J.—The King v. Heen Banda.
[Court of Criminal Appeal.]
1941Present: Howard C.J., Soertsz and de Kretser JJ.
THE . KING v. HEEN BANDA.60—M. C. Kurunegdla, 359.
Misdirection of law and fact—Burden: of proof—Duty of accused to prove hisinnocence—Charge of rape—Corroboration of evidenve—Materialmisstatement in the charge.
Where, in a charge of rape, the only corroboration of the complainant’sevidence was supplied by her eight-year old daughter and there was amaterial misstatement in the charge to the Jury as to the effect of herevidence,—
Held, that the misdirection of fact was fatal to the conviction.
The Judge in the course of his charge used the following words : —“ Ifyou accept the evidence of the accused and of his wife as to the truth,then he must be acquitted. The onus of proving his case is not as heavyon the accused as it is on the prosecution. If you think that the accusedhas established by a preponderance of probability that he is not guilty ofany offence at all, then he is entitled to be acquitted ”.
Held, that the words seemed to indicate that the onus of proving hisinnocence rested in some manner on the accused and there was amisdirection of law.
PPEAL from a conviction by a Judge and Jury before the MidlandCircuit.
T.K. Curtis, for accused, appellant.
E. H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
July 31, 1941. Howard C.J.—
In this case the appellant was convicted of rape and sentenced to a termof seven years’ rigorous imprisonment. Counsel on behalf of the appellanthas put forward several grounds of appeal, most of which are withoutsubstance. Two of these grounds, however, merit serious consideration.The only corroboration of the evidence of the complainant was suppliedby the witness Laisa alias Rosa, her daughter, a child of about eight yearsold. In his charge the learned Judge on two occasions told the Jury thatRosa had heard her mother cry out. This was a misstatement inasmuchas Rosa, although stating in her evidence that she herself raised cries,does not state that her mother did. In considering whether this mis-direction as to the facts was so material as to cause a miscarriage ofjustice, it must be borne in mind that, in order to establish the offence ofrape, the Crown had to prove that sexual intercourse had taken placewithout the consent of the complainant. The medical evidence did notin any manner prove that she had been raped. In her statement to theheadman the complainant stated that the appellant came to the housewith a table knife in his waist and when he was about to rape her he keptthe knife aside. No such testimony with regard to the knife was, however,tendered by the complainant at the trial. It is true that Rosa stated thatthe appellant came inside the house, seized her mother and blew out thelight. On the other hand if the Jury had had any doubts as to whetherthe sexual intercourse took place without the consent of the complainant
de Silva v. Kuruppu.
lhose doubts could not have failed to have been removed if they thoughtthat Rosa was a witness on whom reliance was to be placed and who hadstated that her mother cried out. In these circumstances, this misdirec-tion as to the effect of the evidence was such as to make it reasonablypossible that the Jury would not have returned their verdict of guilty ifthere had been no such misdirection.
There is, moreover, a passage in the learned Judge’s charge which maypossibly have caused some confusion in the minds of the Jury. Thispassage is worded as follows : —
“ Well, gentlemen, if you accept the evidence of the accused and hiswife as the truth, then he must be acquitted. The onus of proving hiscase is not as heavy on the accused as it is on the prosecution. If youthink that the accused has established by a preponderance of probabilitythat he is not guilty of any offence at all, then he is entitled to beacquitted. If on the other hand you discredit the accused’s defencealtogether and you feel that the prosecution has beyond reasonabledoubt established his guilt, then it will be your duty to find him guiltyof the offence with which he is charged.”
Although it is obvious from the whole of the charge that the learnedJudge did not in any way intend to throw the burden of proof on theaccused, this passage is open to this interpretation. The words “ if youaccept the evidence of the accused and his wife as the truth, then he mustbe acquitted ” seem to indicate that, if the Jury do not accept the evidenceof the accused and his wife, the accused must be convicted. Whereas theonus still rests on the Crown to prove that intercourse took place withoutthe consent of the complainant. The position is not improved by the useof the words, “ The onus of proving his case is not as heavy on the accusedas it is on the prosecution. If you think that the accused has establishedby a preponderance of probability that he is not guilty of any offence atall then he is entitled to be acquitted ”. These words seem to indicatethat the onus of proving his innocence in some manner rested on theaccused. This is not the law.
For the reasons I have given, the appeal is allowed and the convictionand sentence quashed. In accordance with section 5 (2) of the Court ofCriminal Appeal Ordinance, we direct that there shall be a new trial.
THE KING v. HEEN BANDA