138-NLR-NLR-V-43-THE-KING-v.-MARTHELIS.pdf
560
The King v. Marthelis.
[Court of Criminal Appeal.]
1942Present : Soertsz, Keuneman and de Kretser JJ.
THE KING v. MARTHELIS.
4—M. C. Chilaw, 17,565.
Rape—Corroboration—Evidence tending to show accused as culprit—Material
circumstance connecting accused.
In a charge of rape the corroborative evidence should show or tend toshow that the story that the Accused committed the crime is true, notmerely that the crime was committed, but it was committed by theaccused.
It would be sufficient if there is corroboration as to a material circum-stance of the crime and of the identity of the accused thereto.
The King v. Anna Sheriff (42 N. L. R. 169) followed.
A
PPEAL from a conviction by a judge and jury before the 3rdWestern Circuit, 1942.
C. Renganathan for 'the accused, appellant.
E. H. T. Gunasekera, C.C., for the Crown.
561
SOERTSZ J.—The King v. Marthelis.
October 14, 1942. Soertsz J.—
This was a case of rape, and the victim being a girl under twelve yearsof age, the two questions that arose for the Jury were whether this girlhad been subjected to sexual intercourse at or about the time alleged ;and whether the appellant was the culprit.
The evidence of the Medical Officer put the first point beyond thepossibility of doubt.
In regard to the second question, the Crown relied on the testimonyof the girl herself definitely implicating the appellant and also on theevidence of the witness, Mohideen, who said he saw the girl enter thehouse of the appellant at about 3 or 3.30 p.m. on this day. That wouldbe, approximately, the time at which the offence was committed, accordingto the girl herself, if her evidence and the evidence of Asilin Nona, herfoster mother, are read together. Other circumstances relied on by theCrown were, (a) that the Government Analyst found blood on three ofthe garments the girl wore on that day, as well as on the sarong theappellant had on at the time he was arrested. The appellant admittedthat that was the sarong he was dressed in on the day on which the girlsaid he raped her ; (b) the defence set up by the appellant. He gave evidenceand affirmed that he was absent from the village on that day from 7.30 a.m.till about 4.30 p.m. and that he had nothing to do with this girl on thatday or at any time at all. He also stated that the house pointed outby the girl as the place of the offence was not his house and that helived in the adjoining house. He could not account for the blood on hissarong.
That was, substantially, all the. evidence bearing on the questionwhether the appellant was the girl’s ravisher or not. The learned Judgeof Assize summed up all this evidence very fully to the Jury, and, in;directing them on the law, pointed out to them that it was a rule ofpractice for Judges to warn Juries that, in these cases, it is dangerousto convict unless the evidence of the prosecutrix “ is corroborated insome material particular”, and he went on to say :—“Corroborationmeans this :—independent evidence implicating the accused in somematerial particular ”. He also told them : —“ But the law also says thatthe Jury may, nevertheless, convict without corroboration, because theymay be so impressed by the evidence of the woman or girl that they feelthey do not need any corroborative evidence to convict the accused. ”Assuming, for the purpose of this case, that we are governed by what thelater decisions of the Court of Criminal Appeal in England have laid downin regard to the proper direction to be given to Juries in these cases, thecharge of the Assize Judge in this case is unexceptionable.
But, the objection is taken that he, at a later stage of his charge,misdirected the Jury when he told them that if they should look forcorroboration, they would find it in Mohideen’s evidence. It is contendedthat, in fact, Mohideen’s evidence did not afford such corroborationas is required in law, inasmuch as that evidence does not implicate theaccused in any material way.
562
SOERTSZ J.—The King v. Marthelis.
In Rex v. Baskerville' the Court of CriminaL Appeal dealt with thequestion of the corroboration of an accomplice and enunciated the rulethat the corroboration required, in such a case, is corroboration “ whichshows or tends to show that the story of the accomplice that the accusedcommitted the crime is true, not merely that the crime has been com-mitted, but that it was committed by the accused The reason whythe practice of Courts has been to test the evidence of accomplices in thisway is that as pointed out by Best at page 161 of the 12th Edition ofhis Treatise on the Law of Evidence, “ the objection to the evidence ofaccomplices arises from 1he obvious interest which they have to savethemselves from punishment by the conviction of the accused againstwhom they appear That consideration does not apply in the case ofa prosecutrix complaining of a sexual offence. In such a case, corrobora-tion is sought for quite another reason, namely, that without it, it wouldbe a case of oath against oath. In that view of the matter,, it seemsreasonable to say that any evidence that helps to tip the balance of thescales in favour ox the oath of the prosecutrix in a significant manner,is sufficient corroboration of her evidence. Be that as it may, the rulein Rex v. Baskerville (supra) was not assumed for a xong time to beapplicable to cases of sexual offences. In 1919 the question arose in thecase of Rex. v. Benjamin Myro Smith" and, curiously enough it arose beforeLord Reading L.C.J., who had delivered the judgment in Rex v. Baskerville.and wiih him there were, on this occasion, Avory and Bray JJ., whohad sat with him to decide Rex. v. Baskerville. Reading L.C.J. thenmade the following order :—•'
“ This appeal involves the important question whether it is essentialthat, where a person is accused of rape, the prosecutrix’s evidence• .should be corroborated in a material particular implicating the accused.We think it is advisable that that point should be argued before a FullCourt. ”
Accordingly, it Went before a Full Court, the additional Judges beingLawrence and Sankey JJ., but, after a full argument, if I may respect–fully say so, it produced this anti-climax : —
“ It is sufficient to say that we are of opinion that the verdict shouldnot be allowed tci stand as it is unreasonable, having regard to theevidence. It therefore, becomes unnecessary to decide the questions. of law which have been argued before us.” (Lord Reading at p. 81Df 14 Cr. App. Rep.).
The question still remains unconsidered by a Full Court. But in 1922,in the case of Rex v. Crocker ”, Hewart L.C.J., after referring to the rulein Rex v. Baskerville (supra), said this : —
“Now ihat is the law regarding the evidence of accomplices, butthis Court cannot accept the contention that the evidence of a girl, thevictim of the offence, is on the same plane with ihat of the evidenceof an accomplice. The objection in such cases as this is not on thegrounds of complicity, but because the case is one of oath against oath. ’’1 (10!G) 2 K. B. D. CSS.- It Cr. -1 ?>/>• B. tt.
11; c, . Ajj/i. n-!>. ic.
SOERTSZ J.—The King v. Marthelis.
563
In two earlier cases, exempli gratia, Rex v. Henry Hedges', and Rex. v.John Graham ’, corroboration not according to the standard of the rule inRex v. Baskerville (supra) was considered sufficient. On the other hand,in two later cases Rex v. Richard Manser *, and Rex v. John EdwardFreebodywe have instances in which that rule was adopted. Anexamination of a large number of these cases drives one to the con-clusion that there is not a constistent rule, but only a wilderness of singleinstances.
Our Court of Criminal Appeal considered this question in the case ofThe King v. Ana Sheriff5 and the majority of the Judges adopted therule in Rex v. Baskerville (supra). They held that, on the facts of that case,the conditions laid down by that rule were not satisfied by the independ-ent evidence there relied on. Whether that was a correct view or not‘we can no longer inquire and we shall be bound to apply the whole ofthat decision, if or when a ease similar on the facts to that case arises.But in regard to this class of cases generally, we are bound by • theprinciple there laid down, that is to say the principle adopted in Rex v.Baskerville, that the corroborative evidence should " show or tend to showthat the story that the accused committed the crime is true, not merelythat the crime was committed, but that it was committed by the accused ”.
Applying that principle to this case, we are of opinion that there isindependent evidence here which, although it may not positively show,yet tends to show, that the appellant committed the crime. The evidenceof Mohideen, that he saw the girl enter the house of the accused, of which,during this period, he was the sole occupant, about the time this offencewas committed, that is to say at about 3.30 p.m., taken with the un-explained fact that there was blood on the sarong the accused, admittedly,wore on this day and with what, according to the view of the Jury, wasa false denial by him that the house was not his house, and a false state-. ment by him that he was away from the village at the time alleged, corrobo-rates the girl’s story by tending to show that he must have been the culprit.
As observed by Howard C.J., Lord Reading said that the rule doesnot mean “ that there must be confirmation of all the circumstances ofthe crime. It is sufficient if there is corroboration as to a materialcircumstance of the crime and of the identity of the accused in relationthereto
Such was the corroboration that the Court of Criminal Appeal hereaccepted as sufficient in Rex v. Burke °. In that case, the only corroborativecircumstance put to the Jury by the Presiding Judge was the fact thatthe accused was found to be suffering from chronic gonorrhoea, and thatseven days after the date of the alleged offence, the girl in the case washerself found to be suffering from that disease. Counsel for the appellantcontended, with much force, that the medical evidence in the casedisclosed a high incidence of this disease in the city of Colombo and that“ there were many ways whereby the girl may have been infected otherthan by contact with the accused ”. Counsel impeached the evidenceregaiding the diseased condition of the accused in that case as irrelevant.But, Moseley S.P.J., in delivering the Judgment of. the Court, said, “ H
1 3 fr. .-1pp. T!rp. 2f>2.4 23 Cr.App.Rop.GO.
– 4 Cr. App. Ron. 2IS.5 42 X. b.Ji.ICO.
3 2S.fr. .4 pp. Hop. IS.• 43 X. /..It.AGS.
SOEBTSZ J.—Vargheese v. Per era.
564
(that is the evidence that the appellant was suffering from gonorrhoea)seems to us to be relevant, if for no other reason, by virtue of section 11 (6) -of the Evidence Ordinance, since the fact of the appellant’s infectionenhances the probability of the girl’s allegation that'it is he who assaultedher
In the same way, in the present case, Mohideen’s evidence and theother facts already referred to, enhance the probability of the girl’sallegation that the appellant it was who assaulted her. In other words,they sufficiently tend to show that he was the culprit.
For these reasons, we dismiss the appeal.
Appeal dismissed.