HEARNE J.—The King v. Matarage Martin.
[Court of Criminal Appeal.]
1940Present: Hearae, Keuneman, and Cannon JJ.
THE KING v. MATARAGE MARTIN et al.
35—M. C. Colombo, 207.
Evidence—Court of Criminal Appeal—Discrepancy between Judge’s note andthe shorthand report—Judge’s note to be preferred.
Where there is a discrepancy between the notes made by the presidingJudge of the evidence of a witness and the report of the shorthandwriter, the Judge’s note should be preferred.
PPEAL from a conviction before a Judge and jury in the WesternCircuit.
S. W. Jayasuriya, for first and second accused, appellants.
Third and fourth accused-appellants in person.
E. H. T. Gunasekera, C.C., for the Crown.
October 11, 1940. Hearne J.—
The first, second, third, and fourth appellants were convicted ofabduction and rape. The second was also convicted of causing grievoushurt and mischief by fire. The first and second appellants wererepresented by Counsel on appeal:the third and . fourth appellants
appeared in person.
Dealing with the conviction of the second appellant of grievous hurtto Lenohamy, his Counsel referred to a passage in the summing-up inwhich, it was stated that Lenohamy’s evidence of an assault upon herby the second appellant was confirmed by her husband, Baby Singho.
This is not in accordance with the note made by the Court steno-grapher who records Baby Singho as having said that the fourthappellant assaulted his wife. The note made by the Judge, however,is that Baby Singho’s evidence was to the effect that the second appellanthad struck Lenohamy on her side. In the circumstances we should;we think, be governed by the Judge’s note of what Baby Singho said.
In the case of James Beauchamp1 it appeared that the learnedChairman had referred to facts as being in evidence which were notreported by the shorthand writer. Mr. Justice Jelf remarked, “It is notright that the shorthand reporter should omit anything from thewitnesses’ examinations. In the case of a discrepancy, the Court willprefer the Judge’s note.” Whereupon, the Lord Chief Justice said,“ That is the practice of the Court
But even if the Judge was wrong in the note he had made and which hefollowed in his summing-up to the jury, Counsel for the second appellantat the trial should, at that time, have suggested to the Judge that his'recollection would appear to have been at fault. The Judge could thenhave consulted the Court stenographer, and if so advised, have amended
1 2 Cr. App. Heps. 40.
Fernando v. Fernando.
his direction to the jury. It was, we consider, the duty of the appellant’sCounsel to have acted in that way—not to have kept silent and so haveenabled the appellant to make a relatively minor misdirection of fact,assuming the Judge was wrong, a point of appeal in this Court.
The submission that there was no independent evidence to corroboratethe complainant’s charge of rape—it was advanced very perfunctorily—is, in our opinion, without merit.
The final point that was argued before us was that the Judge had notadequately explained to the jury the defence of the first and secondappellants which was that of an alibi. The defence was not that of analibi in the strict sense that the appellants claimed not to have beenanywhere near the scene of the abduction at the time it occurred. Thefirst appellant gave evidence, which was supported by that of the thirdappellant, that he, the second appellant, and the fourth appellant werenear a boutique in the vicinity of the house from which the complainantis alleged to have been abducted, and they saw the third appellantleading her unresisting away. The defence was, in our opinion, fairlyput to the jury and must have been present to their minds at the timethey considered their verdict.
We have also considered the submissions made by the third and fourthappellants and, in our opinion, all the appeals must be dismissed. '