The King v. Mudalihamy.
[Court of Criminal Appeal.]
1940 Present: Howard C.J., Moseley S.P.J., and Cannon J.
THE KING v. MUDALIHAMY et ah11—M. C. Chilaw, 11,730.
• Depositions—Used by defence to contradict witnesses—Right of jury to have thewhole of the depositions referred to thkm—How depositions should beread in evidence. '
Where, during a trial, witnesses were cross-examined by Counsel for thedefence regarding statements made in their depositions in order to showthat they had contradicted themselves,—
Held, that it was competent for the Judge to refer to the whole of thedepositions not only for the purpose of forming an opinion with regardto the contradictions but also with a view to discovering to what extentthey corroborated the testimony given at the trial.
HOWARD C.J.—The King u. Mudalihamy.
Where, in such a case, the clerk of the Assize is called to produce thedepositions, he should be asked to read those passages from the evidenceof witnesses relied on as contradictory so as to have those passagesformally recorded in the evidence.
PPEAL, from a conviction by a Judge and jury before the FourthWestern Circuit.
J. E. M. Obeysekere (with him S. W. Jayasooriya), for accused,appellants.
E. H. T. Guv.asekera, C. C., for the Crown.
Cur. adv. vult.
December 18, 1940. Howard C.J.—
The appeal in this case is based mainly on' the ground that portions ofthe depositions in the Magistrate’s Court of the witnesses Jothipala,Dingiri Banda, Jayakodi, and William were improperly placed before thejury. During the course of the trial these witnesses were cross-examinedby Counsel for the defence with regard to statements made in theirdeposition^ with a view to showing that they had contradicted themselves.At the close of the evidence for the defence Counsel for the accused called.the Clerk of Assize who produced the record of the proceedings in theMagistrate's Court. This witness did not follow the usual practice ofreading out those portions of the evidence of the witnesses on whichCounsel relied to establish contradiction. He merely referred to the• numbers of the pages where the evidence of these witnesses was recorded.In his charge to the jury the learned Judge read out to the jury variouspassages from the depositions of these witnesses. In doing so he did notconfine himself to reading only those portions of the evidence in the lowerCourt that contradicted the testimony given in the trial Court. It hasbeen contended by Counsel for the appellants that a deposition may onlybe used for cross-examining a witness to show that such witness hascontradicted himself and hence only the passages in support of suchcontradictions can be put to the jury. Counsel maintained that certainpassages in the charge of the learned Judge not only invited the attentionof the jury to contradictions established by the depositions, but alsotreated as substantive evidence parts of those depositions that did notindicate contradictions. In particular, complaint was made in therecapitulation to the jury of what jothipala said in the lower Court withregard to the fourth accused striking the deceased with an iron rod twiceon the legs and the four accused and the other man hitting the latter withclubs, whilst he was lying fallen on the ground. Objection was also takento the learned .Judge stating to the jury “ that is the evidence of DingiriBanda in both Courts ” and to the detailing of what William said in theCourt below. It was suggested by Counsel for the appellants that thesepassages from the depositions of the witnesses filled in gaps in the evidence•produced at the trial and were treated by the Judge as substantive evi-dence. Comparison, however, of the passages from the depositions citedin the charge to the jury with the evidence tendered at the trial by'thethree witnesses mentioned in the grounds of appeal indicates. that thesepassages did not fill in gaps in the evidence and that all these witnessesgave substantially at the trial the same evidence as they had tendered in
HOWARD C.JV—The King v. Mudalihamy.105
the lower Court. The statements of these witnesses, as revealed by thedepositions, could be regarded merely as corroboration of what thewitnesses said at the trial. It has been contended by Mr. Gunasekerathat in such circumstances there has been no irregularity in the admissionof the evidence of the depositions. In this connection he has referred usto the provisions of section 157 of the Evidence Ordinance. Mr. Obeye-sekere on the other hand has cited the judgment of Fisher C.J. in the caseof The King v. Silva as authority for the proposition that a previousstatement of a witness can only be used in evidence for the purpose ofimpeaching the credit of a witness. In that case a statement made by awitness to a Police Officer and afterwards denied by the witness at thetrial was used as substantive evidence of the facts stated against theaccused. It was held that such a statement was admissible neitherunder section 145 (1) nor 155 (c) of the Evidence Ordinance. Moreverit was not admissible under section 157 inasmuch as the witness had notgiven evidence when the statement was put in. Such witness could notbe corroborated in advance. Nor in the face of his denial could thestatement be regarded as corroboration of his evidence. In the presentcase we are of opinion that the depositions were referred to by the learnedJudge so that the jury might be able to form an opinion as to whatextent the witnesses had contradicted themselves. The jury was entitledto examine the whole of these depositions not only for the purpose offorming an opinion with regard to the contradictions, but also with a viewto discovering to what extent they corroborated the testimony given atthe trial. The case of The King v. Silva (supra) is not an authority for theproposition that the depositions were not admissible for the purposedhave mentioned. In this connection the' following commentary ofWoodroffe & Ameer Ali on the corresponding section in the IndianEvidence Act at page 1024 of the 9th edition of the Law of Evidenceapplicable to British India is in point: —
“ The section, however, proceeds upon the principle that consistencyis a ground for belief in the witness’s veracity. So Chief Baron Gilbertwas of opinion that the party who called a witness against whomcontradictory statements had been proved might show that he hadaffirmed the same thing before on other occasions and that he wastherefore consistent with himself. ”
When it was suggested by the defence that the witnesses had madeinconsistent statements, it was proper for the Judge to examine theextent of such inconsistency by reference to the whole of their depositions.We are, therefore, of opinion that there is no substance in this objectionof Counsel for the appellant to the citation by the learned Judge in hischarge to the jury of passages from the depositions. We consider,however, that there was some irregularity in the manner in which thedepositions were tendered in evidence. .The Clerk of Assize after produc-ing the record should have been invited by Counsel for the defenceto read out those passages from the evidence of the various witnessesrelied on as contradictory. The shorthand writer would then haverecorded those passages in his notes of the evidence and only thosepassages would be formally put in.
* 30 N. L. if. 193.
Fernando v. Aponsu.
The other grounds of appeal require only brief consideration. Ground4 which suggested'that the charge of the learned Judge contained certainmisstatements of the evidence was not pressed. Nor do we considerthat there is any substance in it. Ground 5 complained that the learnedJudge has failed to direct the jury upon (a) contradictions in the evidenceof the prosecution witnesses and (b) the failure of the prosecution toexplain the injuries on the first accused. With regard to (a), the attentionof the jury was directed generally to inconsistencies and contradictions inthe evidence and the manner in which the jury should deal with them.In this connection the learned Judge cited a passage from Wills onCircumstantial Evidence. Moreover the charge dealt with the alterationsin the evidence of the various witnesses. It cannot, therefore, be saidthat the charge failed to deal adequately with this aspect of the case.With regard to (b), we do not consider that it was incumbent on theprosecution to explain the injuries on the first accused. It should alsobe borne in mind that the latter himself could have explained how hereceived his injuries. He failed to do so. We do not consider thatground 5 indicates any non-direction. Ground 6 was not pressed.
For the reasons I have given this appeal must be dismissed.
THE KING v. MUDALIHAMY et al.