The King v. Kotalawala.
| Court of Criminal Appeal.]
1941 Present: Moseley S.PJ., Keuneman and de Kretser J J.
THE KING v. KOTALAWALA18—M. C. Kurunegala, 69,650.
Evidence—Questions os to bad character of accused—Duty of Judge—Warningto jury—Statements prejudicial to accused—Order for a new trial—Evidence Ordinance, s. 54 (Cap. II).
Where questions as to the bad character of an accused person are putto a witness, it is the duty of the Judge to stop such questions himselfwithout waiting for any objection from the prisoner’s Counsel
Where such a question is put by mischance it is equally the clear dutyof the Judge to direct the jury to disregard if and not to let it influencetheir minds.
Where, as the result of such a question, a statement prejudicial to theaccused is made by a witness, an application for a fresh trial should beallowed, even where the Judge had warned the jury that the objectionableevidence should be disregarded.
HIS was an application for leave to appeal on the facts from aconviction by a Judge and jury before the third Midland Circuit.
The Court however allowed the appellant to raise a point of law, whichhad not been made a ground of appeal.
S. Mahadeva, for the accused, appellant.—The evidence indicatingthat the accused. was of violent disposition was improperly admitted.Under section 54 of the Evidence Ordinance (Cap. 11) the fact that anaccused person has a bad character becomes relevant only if evidencehas been given that he has a good character. It cannot be said in thiscase that the accused led evidence of good character.
Further, even if the bad character of the accused became relevant,it could not, according to the provisions of section 55 of the EvidenceOrdinance, be proved by evidence of isolated acts.
The reception of the inadmissible evidence caused material prejudiceto the accused. See Maxwell v. Director of Public ProsecutionsArthurThomas Ellis’; Ramesh Chandra Das v. Emperor3; Sumeshwar Jha et al.v. Emperor *.
E. H. T. Gunasekera, C.C., for the Crown.—Some questions put by thedefending Counsel in cross-examination of the deceased’s father wereclearly intended to establish the good character of the accused. Thequestions, therefore, put by the Crown Counsel did not .offend againstthe provisions of section 54 of the Evidence Ordinance. They were,moreover, directed to elucidate matters referred to in cross-examination.
If, with the view of raising a presumption of innocence, witnesses tocharacter are called for the defence, the Counsel for the Crown may thenrebut this presumption by cross-examining the witnesses as to particularfacts—R. v. HodgkinsR. v. Wood",.Taylor on Evidence (12th ed.), paras.351—2, Wills on Circumstantial Evidence (5th ed.) u p. 228.
Cur. adv. vult.
> (1934) L. J. K. B. 501.
* 5 Cr. App. R. 41.
»/. L. R. (1919) 46 Cal. 895.
A. I. R. 1923 Patna 103.
(1836) 7 C. <t P. 298.
« (1860) 5 Jtar. 225.
MOSELEY J.—The King v. Kotalawala. ,
April 2, 1941. Moseley J.—
This matter came before the Court by way oi an application for leaveto appeal on the facts. In our opinion it cannot be said that the verdictof the jury on the evidence before it was unreasonable. Nor is there any' substance in the submission that there has been misdirection on a matterof fact. The appellant was, however, allowed to raise a point of lawwhich had not beeirmade a ground of appeal.
The appellant was convicted at the Kurunegala Assizes on February24, of the murder of the son of his employer. The latter was the managerof a boutique and both the deceased and the appellant were employedin the boutique, the deceased as a salesman, accused as a clerk. In theabsence of the manager the accused was accustomed to take charge.There is evidence that accused and deceased were jealous of each other.Otherwise they appear to have been on friendly terms. In a box on thepremises there was a shot-gun. On the day of the incident, accordingto the evidence of the accused, he took the gun out of the box and askedthe cook to load it. Shortly afterwards a report was head and thedeceased who was sitting at a table in the next room, separated from theaccused by a screen of gunny bag, was shot. It is common ground thatthe gun was in the hands of the accused. The defence was that the gunwent off by accident.
The prosecution led evidence of several incidents tending to show that •there was ill-feeling between deceased and appellant such as mightprovide the latter with a motive for intentionally harming the deceased.The latter’s father, in cross-examination, said that, apart from thefeeling, of jealousy between the two, he had nothing to say against theaccused. This statement, which appears to us to be limited to thequestion of motive, apparently encouraged Counsel for the defence toput a question as follows : —
“ Q.—Accused was a very well behaved man, doing his work well in theboutique ? ”
The answer was : “ He is a quarrelsome man who loses his temper in notime for very trivial things.” The – examination of the witnesscontinued as follows :
“If anybody finds fault with him in any work he does, he gets angry.
I have seen it very often and I have warned him. There aretwo very important incidents which I know apart from thedeceased. (Re-examined.) This accused went to get somemedicine from the dispenser at Dodangaslanda and when thedispenser asked him to wait for some time to give him themedicine the accused quarrelled with the dispenser and cameaway without taking the medicine.
Counsel for the accused : I object to this as it is hearsay.
Crown Counsel: How did you come to know about it ?
Witness: The accused told me about it. The accused came awaymerely because the dispenser asked him to wait till he got themedicine ready. The second incident happened in my presence.When a man from an estate came to buy some dry fish he found
MOSELEY J.—The King v. Kotalawala.
fault with the accused for overcharging. Accused abused thecustomer and after he left the boutique the accused said thatif that man came to the boutique again he would hit him with aruler. ”
It is in regard to the admission of this evidence that objection is nowtaken on the ground that, as provided by section 54 of the EvidenceOrdinance (Cap. 11), the fact that the accused has a bad character isirrelevant, unless evidence has Been given that he has a good character.The explanation to section 55 makes it clear that the word “ character ”includes both reputation and disposition, and that, except as providedin section 54, “ evidence may be given only of general reputation andgeneral disposition, and not of particular acts by which reputation ordisposition were shown.” The reason underlying this limitation is thatwhereas some inference may be drawn in favour of an accused personfrom a general reputation of good character, no presumption can bebased on proof of isolated facts.
Counsel for the Crown submitted that evidence of good characterhad been led by the defence and relied upon the statement of the deceased’sfather that apart from the feeling of jealousy he had “ nothing to sayagainst the accused”. As we have already observed it seems to us thatthe question which elicited that answer was directed to show the absenceof motive in the appellant, and that the answer obtained is limited tothat aspect of the case. It is not clear how the evidence of the witnesswhich immediately followed, and which is quoted above, was elicited.The reference to “ two very important incidents ” would seem to be inreply to a queFy as to the ability of the witness to furnish instancesreflecting the quarrelsome nature of the appellant. Assuming thatto be so Counsel for the Crown argued that the re-examination whichfollowed was proper since it was he said, directed to matters referredto in cross-examination. This argument does not appeal to us. Thereference by the witness to “ two very important incidents ” did notrequire explanation from the point of view of the case for the prosecu-tion. The result of the re-examination was to crystallize in the minds ofthe jury a matter which Counsel for the defence had wisely left inshadowy form.
The position then seems to be that, since evidence that the appellanthad a good character had not been given, the evidence indicating thathe had a bad character was not relevant. It matters not who wasresponsible for. its introduction. In Arthur Thomas Ellis' the Courtexpressed the opinion that it is the duty of the Judge not to wait for anyobjection from the prisoner’s Counsel, but to stop such questions himself,and if by mischance the question be put, it is equally the clear duty ofthe Judge to direct the jury to disregard it and not let it influnce theirminds ”. The present case is in this respect not free from difficulty sincein the first place, it could have been reasonably anticipated that thequestion put by Counsel for the defence would receive an answer favour-able to the appellant, and secondly the answer reached the jury in thelanguage of the witness before it was interpreted to the Judge. Even
1 5 Cr. App. R. 41
MOSELEY J.—The King v. Kotalawala.
then the purport of the evidence appears to have escaped attention.Indeed it is only in this Court and at the last minuute that the point hasbeen raised. Objection was raised at the trial, but only on the groundthat the evidence as to one of the incidents was hearsay, and the objectionbeing ill-founded, was not pressed.
There can be little doubt but that this evidence, particularly that inregard to the second incident, might well have the effect of inclining thejury to the belief that the appellant was of a violent disposition andtherefore not unlikely to have intentionally shot at the deceased. Thepresiding Judge might have told the jury to put the evidence out of theirminds entirely. But as was observed in Rex v. Norton1 and quoted inRamesh Chandra Das v. Emperor* “whatever directions be given to thejury, it is almost impossible for them to dismiss such evidence entirelyfrom their minds ”.
No doubt, if the position had been realized and if Counsel' for thedefence had applied for a fresh trial before another jury, it would, havebeen the duty of the Court to begin the trial again. This was laid downin so many words in Harry Firth'. In that case a statement prejudicialto the accused had been inadvertently made by a witness. Applicationfor a fresh trial was refused and the accused was convicted, notwithstand-ing a strong warning from the Judge that the objectionable evidenceshould be disregarded. – It seemed to the Appeal Court “in a high decreedangerous to permit the trial to continue to its end where such an irre-gularity has occurred as that which here was inadvertently permitted.It is impossible to say at what conclusion the jury might have arrivedif the irregularity had not occurred …. The question is notwhether the risk involved in refusing another jury should have beenaccepted. The risk seems to us too great to have been taken …”In the case before us there was no application for, nor refusal to grant,a fresh trial. Nevertheless there is in our view a clear indication of theremedy which this Court should apply in such a case.
In Maxwell v. Director of Public Prosecutions' an accused personwho had put his character in issue was asked whether he had beenpreviously charged with a certain offence, a question which Counselfor the prosecution was entitled, under the Criminal Evidence Act, 1898,to put to him, “ subject to the consideration that the question asked himmust be one which was relevant and admissible to the case of an ordinarywitness”. As was observed in the judgment of the House of Lordswhich proceeds as follows : —
“ The effect of such a statement on the minds of a jury might beoverwhelming, and it is impossible to say in this case that the receptionof this evidence was not the deciding factor which made the jurygive their verdict. It might well be that the fact …. mighthave been the last ounce which turned the scale against him.”
In the present case the jury had before them on the one hand a case ofshooting which the prosecution asked them to say was intentional. On
1 (1910) 2 K. B.. p. S00.' 26 Cr. App. R. 148.
• 46 Cal., 895.* 103 L.J. (K.B.) p. 501.
SOERTSZ J.—The King v. Chalo Singho.
the other hand the defence put forward a case of accident. Evidencethat the accused had a tendency towards violence might be the decidingfactor in favour of the case for the prosecution.
The appeal must be allowed and the conviction .quashed. In exerciseof the powers conferred upon us by the proviso to section 5 (2) of theCourt of Criminal Appeal Ordinance, (No. 23 of 1938), we order a newtrial.
Ne.w trial ordered.
THE KING v. KOTALAWALA