138-NLR-NLR-V-22-THE-KING-v.-JORONIS-et-al.pdf
Present: Bertram C.J.-
THE KING v. JORONIS et ah
4—P. G. AvissaweUa, 32,503.
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Accused only witness for defence—Time for summing up by Grown Counsel—One of several accused calling other witnesses—Time for sum-ming up—Criminal Procedure Code, 88. 234 and 235.
Where the only witness called for the defence is the accusedhimself, the appropriate time for summing up of his case by counselfor the Crown is after the accused has given evidence and beforethe reply of his own counsel.
If there is another person accused on the same indictment andthat person calls evidence (other than himself), the summing up ofcounsel for the Crown may be postponed till the conclusion of thecase for that other person, so that counsel for the Crown may sumup as regards one 'accused per&on and reply as regards the otherin the same speech. In such a case the counsel who called noevidence but his own client has. the last word.
rpHE facts appear from the judgment.
o
Barber, C.G., for t|ie Crown.
8. Rafaratnam (with him Senaratne), for first accused.
Georgesz, for second accused.
September 12, 1921. Bertram C.J.—
The question has arisen as to the point in a criminal trial at whichCrown Counsel should sum up his case to the jury, where the onlywitness called foi; the defence is the accused himself. The mattercame up at the Kandy Assizes last year, and there it was provision-ally agreed that the summing up in such cases should take placebefore the prisoner had given his evidence, but it is said that theprevious practice had been otherwise. Some inconvenience resultsfrom the course indicated, as, if Crown Counsel sums up before theaccused has disclosed his defence in his evidence, he is not in aposition adequately to address the jury. The practice works outwith special inconvenience in certain cases. I have, therefore,submitted the relative section of the Criminal ProcedureCode to a1fuller examination.
The position appears to be as follows. Our Code wa<s originallymodelled upon the Indian Criminal Procedure Code at a^time when,according to the Indian system, the accused was not a competentwitness in his own defence. It dealt with two oases : Firstly, that
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of a trial by the Distriot Court (sections 208-212); and secondly,that of a trial by the Supreme Court (sections 232-237). In thefirst case the prosecuting counsel was not entitled to stun up theresult of the evidence on the conclusion of his case. He was onlyentitled to a reply in the event of the accused calling witnesses. Ata trial before the Supreme Court, on the other hand, prosecutingcounsel, if the accused called no witnesses, was entitled to “ addressthe jury a second time in support of his case for the purpose ofsumming up the evidence against the aocused.” To this systemthere is now added the new principle, now embodied in the EnglishCriminal Evidence Act, 1898, that the accused i& a competentwitness in his own defence. This in Ceylon was the result of section120 (4) of the Evidence Ordinance (No. 14 of 1895).
Thus, from 1895 to 1898, the prisoner was a competent witnesson his own behalf under the old Criminal Procedure Code, and in theprovisions of that Code his electing to give evidence did not affectthe Crown’s right of reply. Now the Criminal Evidence Act, 1898,contained two specialprovisions, which are in the following terms:—Section 2.—“ Where the only witness to the facts of the casecalled by the defence is the person charged, he shall be called as awitness immediately after the close of the evidence for the prosecu-tion.”
Section 3.—“ In cases where the right of reply depends upon thequestion whether evidence has been called for the defence, the factthat the person charged has been called as a witness shall not ofitself confer on the prosecution the right of reply.”
The second of these provisions was embodied in our new CriminalProcedure Code passed in the same year (section 296 (2) ). Thefirst provision (section 2), however, was Hot so embodied.
These provisions were the subject of judicial interpretation inReg. v. Gardiner.1 It was contended that section 2 (which admit-tedly deprived counsel for the defence of his right to open his case)also deprived counsel for the Grown of his right to sum up his caseto the jury, and, alternatively, that even if this was not the effectof the section, counsel for the Crown in summing up was not entitledto comment on the evidence of the accused. Both these contentionswere disallowed, and as the result of this decision, it is now thesettled practice in England that the prisoner, if the only witnesscalled by the defence, gives Bis evidence immediately after theevidence for the prosecution ; that counsel for the Crown thensums up ; that in so doing is entitled to comment on the prisoner’sevidence ; and that counsel for the defence then replies.
It will be observed that this decision turned wholly upon theeffect of section 2. But we have nothing to correspond with thissection in our own Code. What is the effect of this circumstanceon our own procedure in a Supreme Court trial ? To answer this
1 {1898) 1 Q. B. 160. _
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question we must examine the terms of the Code. If we confineourselves to the express provisions of the Code, the result is somewhatunexpected. It is only in the event of the accused or his pleaderannouncing his intention not to adduce evidence that counsel forthe Crown is entitled to sum up at all (section 234 (3)). This is inaccordance with the English procedure as settled by Denman’s Actof 1865 (28 and 29 Viet., o. 18). If, therefore, the accused or hispleader announces that the accused himself will give evidenoe, butthat no other witnesses will be called, counsel for the Crown has noright to sum up. Similarly, the combined effect of section 237 (2)and section 296 (2) deprives him of his right of reply. The result isthat if we confine ourselves to the express terms of the Code, where* the accused is the only witness, counsel for the Crown cannot speakat all. After his opening speech his mouth is closed.
This, however, has never been the practice. Moreover, it seemsdifficult to believe that it was the intention of the Code that themere fact of the accused electing to give evidence should putcounsel for the Crown in this position. It seems more reasonableto hold that this is a casus omissus, that is to say, that the draftsmanby an oversight omitted to make any special provision for the rightof counsel for the Crown to address the jury in cases where by theoperation of section 296 (2) he loses his right of reply, and that thisis a matter to which under section 4 we are entitled to have recourseto “ the law relating to Criminal Procedure for the time being inforce in England …. so far as the same shall notconflict or be inconsistent with this Code and can be made auxiliarythereto.” It is no doubt by virtue of this section that according tothe present practice counsel for the Crown is allowed to sum up wherethe prisoner is the only witness called for the defence.
This is, indeed, not the only omission in our Code. There is a *similar omission as regards counsel for the defence. The only placesin which his rights are defined are section 211 as regards DistrictCourt trials and section 235 as regards Supreme Court trials. If-these sections were carefully examined, it will be seen that theyonly provide for cases in which the accused calls witnesses. Theexpression " open his case ” is hardly appropriate to cases otherthan these. Where he calls no witnesses, no provision is made forhis addressing the Court or the jury at all. Yet in practicehe always does so, presumably in accordance with Englishprocedure. The explanation of these omissions is that this part ofthe Code (both in India and Ceylon) was based upon Denman’s Actabove referred to, and that the object of Denman’s Act was not tocodify the law, but to supplement it. It is, therefore, a treacherousmodel.
But, if we may have recourse to the English practice for thepurpose of allowing counsel for the Crown to sum up at all, we mayequally have recourse to it for the purpose of determining the point
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at which his summing up should take place. This,' according tothe English practice, where the accused is the only witness, isimmediately after the accused has given his evidence. I do notthink that this implies that counsel for the defence in such oasesloses his right to open his case to the jury before his client is called.He is expressly given that right by section 235, and there is nothingin the Code to take it away. The English practice is only to beintroduced so far as it is not inconsistent with the Code and can bemade auxiliary thereto. The English practice can be introduced,therefore, to the extent of allowing counsel for the Crown his rightto sum up, counsel for the defence still retaining his right of opening.The right is not likely to be often exercised.
It would appear then that the appropriate place for counsel forthe Crown’s summing up is after the accused has given evidenceand before the reply of his own counsel. If there is another personaccused in the same indictment, and that person calls evidence(other than himself), I see no reason why the summing up ofcounsel for the Crown should not be postponed till the conclusion ofthe case for that other person, so as to allow counsel for the Crownto sum up as regards one accused person and reply as regards theother in the same speech. In such a case the counsel who calledno evidence but his own client, of course, has the last word.
The basis of the suggestion, on which the provisional decisionabove referred to was given, was the presence of the word “ then ”in section 235. “ The accused or his pleader may then open hiscase.” It was submitted that this implies that the summing upreferred to in the preceding section must take place in all casesbefore the case for the accused is presented at all. But this, I thinlyproves to be a misapprehension. There is some confusion in ourCode here owing to faulty adaptation from the Indian model.Section 235 does not follow logically on sub-section (3) of section 234.The word “ then ” is an inexactitude. The case contemplated inthe final sub-section of section 234 is that where “ the accused orhis pleader announces his intention not to adduce evidence.” Thecase contemplated in section 235 is that where he proposes toadduce evidence. There is no sequence in the events contemplatedby these two provisions. They are alternatives, and the wordi! then ” is thus, out of place. How it comes to be there may beunderstood by reference to the Indian model. Section 235 corre-sponds to section 290 of the Indian Code, but after the word“ witnesses ” the Indian section has the words “ if any,” and thefinal sub-section of section 289 contemplates the two cases in thealternative, that is to say, the case where the accused declares hisintention to adduce evidence and the case where he does not. Theword “ then ” in section 290 is thus logical. In our own Code it isnot. Under the circumstances, I do not think that any argumentcan justly be based upon it. I think it is best to consider that the
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case of an accused person being the only witness calledfor the defenceis a special case which has not been expressly provided for, andfor which accordingly we must have recourse to the English practice.
In the case render consideration, by consent connsel for the Crownaddressed the jury on the oase of the first accused after he had givenevidenoe. Any other procedure would, in the circumstances of theoase, have been obviously inconvenient, and I promised to lookfurther into the matter and to deliver a considered judgment.
I have consulted my colleagues, and they all agree with the viewabove expressed.