062-NLR-NLR-V-36-THE-KING-v.-KENNEDY.pdf
DRIEBERG j.—The King v. Kennedy.
303
1934Present: Drieberg J.
THE KING v. KENNEDY
P. C. Colombo, 10,713
[Third Western Circuit.]
Criminal Procedure—Evidence of witness not relied on by the Crotpn—CrotonCounsel opens the evidence to the Jury—Proposal to limit the exami-nation—Prejudice to accused.
Crown Counsel in opening a case to the Jury referred to certainevidence given by a witness called for the prosecution which he statedhe did not accept for reasons given by him. When the witness wascalled, Crown Counsel proposed to limit his examination to such part ofhis evidence as was not challenged by him.
Held, Crown Counsel was bound to examine the witness on the evidencehe opened to the Jury.
T
HE accused in this case was charged before the Supreme Court undersection 418 of the Penal Code with committing mischief by fire.
J. E. M. Obeyesekere, Acting D. S.-G. (with him Deraniyagala, C.C.),for the Crown.
R.L. Pereira. K.C. (with him Vangeyzel), for accused.
September 18, 1934. Drieberg J.—
In opening the case for the prosecution, Mr. Obeyesekere, ActingDeputy Solicitor-General, stated that there would be proof that theaccused bought two tins of petrol some time before the fire. Referring
304
S
DRIEBERG J.—ifhe King v. Kennedy.
!
-T;*' “f"
to the evidence to be given by ^ie witness S. A. Perera, he said thatPerera would say that the li£t P 32, on which the accused supportedhis claim to Rs. 98,454,03 worth of skins obtained from the tannery of
S.A. Perera and which were said to have been in his store and destroyedby the fire on September 29, was written by him but that there were nounsold sk'ns of his with the accused at the time of the fire. He relied onthat part of Perera’s evidence, but Perera had given other evidencewhich the Crown did not accept as true. S. A. Perera had stated in thePolice Court that some time before the fire the accused gave him totins of petrol—the accused said he got the petrol for the purpose ofremoving stains on skins, and when he told the accused that petrol woulddamage the skins the accused said the petrol would be of no use to himand he made Perera a gift of the two tins.
Mr. Obeyesekere then stated certain reasons why the evidence ofPerera on this point could not be believed.
When Perera was called, Mr. Obeyesekere concluded his examination-in-chief without eliciting from him anything regarding the two tins ofpetrol. Mr. R. L-. Pereira, for the accused, contended that, this evidencegiven by S. A. Perera in the Police Court having been disclosed to theJury in the opening, Mr. Obeyesekere was obliged to place it before them.
Mr. Obeyesekere contended that the position was in no way differentfrom the Crown electing not to call a witness for the prosecution enteredin the indictment and leaving it to the accused, if he so desired, to askthat the witness be tendered for cross-examination.
This is, no doubt, the usual practice, and I was referred to the case ofKing v. Perera where it was recognized. But the present case isdifferent, for the Crown has called Perera, but claims the right not to leada certain part of his evidence, which was stated in full to the Jury withthe reasons why the Crown regarded it as false.
In the King v. Perera (supra), Wood Renton C.J. said that when theCrown did not elect to call a witness the Crown should state the reasonswhy it was considered undesirable to do so. I do not understand thisto mean that the Crown should go to the extent of stating the evidencefully and demonstrating why it should regarded as false.
In this case, if the Crown does not elicit this evidence and the accuseddoes not do so in cross-examination, the Jury would be left with a state-ment by the Crown that Perera had attempted in the Police Court to •prove that the accused had given him two tins of petrol before the fireand with reasons placed before them for believing that this was not true.This may greatly prejudice the accused, even though I were to impresson the Jury that they were to dismiss from their minds all referencemade to this evidence given in the Police Court.
I think the correct course in these circumstances was for the ActingDeputy Solicitor-General in opening the case to have omitted anyreference to this part of Perera’s evidence, leaving it to counsel for theaccused to deal with it in cross-examination, if he so desired.
I informed Mr. Obeyesekere that I thought he should put this evidencebefore the Jury, and he agreed to do so. As the point is of importanceto the Crown, I said I would put in writing the reasons for my order.
1 (1915) 18 K. L. R. 215.