The King v. Namasivayam.
[Cottbt of Ckhunal Apfbal.]
Present: Mo ward C.J. (President), Jayetilebe J. and N&gallngam J.THE KING v. NAMASIVAYAM et al.
Appeals Nos. 21-24 of 1948.
S. C. 21-24—M. C. Kurwrujgala, 19,878.
Dourt oj Criminal Appeal—Depositions of witnesses in Magistrate's Court—Questionsby trial Judge—Resulting affirmation that statement before Magistrate wastrue—Substantive evidence—Refreshing memory of witness—Misdirection—-Prejudice to accused— Verdict based on illegal and inadmissible evidence—-Evidence Ordinance, Section 159—Extension of time for appeal.
The accused were charged with being members of an unlawful assembly’Tioting, criminal trespass and causing hurt. The defence did not contestthe fact of perpetration of the offence but did contest that the prisoners ontrial were responsible for it and the question of identification became, inconsequence, of extreme importance. Some of the witnesses in the course ofexamination stated that they could not remember the presence of variousaccused, whereupon the trial judge proceeded to examine them in the followingstrain :
Q. You told the Magistrate that four people came and one of them was.the first accused. What you said in the lower court, is that true f
Q. If you told in the lower court that the first accused was one of themas that true ?
Held, (i) that such examination let in as substantive evidence the depositionsmade by the witnesses before the Magistrate and that such evidence wasillegal and inadmissible ;
that although a Judge has very wide powers of asking any questions hepleases in any form and at any time of any witness, those powers should notbe so used as to afford ground for the legitimate criticism that the accusedpersons have not had the benefit of a fair trial;
that in the absence of a direction by the Judge as to the position inregard to the statements said to have been made by the witnesses before theMagistrate but which were not proved to have been made by them nor evenas to what the effect was even if so proved in the absence of affirmative evidencein court on the part of the witnesses re-iterating the statement alleged to havebeen made before the Magistrate, it could not be said that the verdict of theJury may not have been based on illegal and inadmissible evidence.
Held, further, that it is open to the Court of Criminal Appeal to extend thetime for appeal if application for leave to appeal is made.
Quaere, whether depositions made at least a month after the event and whichwere not read over by the witness but read to him could be regarded as fallingwithin the ambit of Section 159 of the Evidence Ordinance which permits awitness to refresh his memory by reference to a document.
NAQALIN GAM J.—The King v. Namaaivayam.
^^PPEALS from certain convictions in a trial before a Judge andJury.
H. V. Per era, K. C., with -ST. G. E. Rodrigo and 8. SdbapaihipiUai,for the 2nd accused-appellants.
8. Saravananwttu, with V. Joseph, for the 7th and 16th accused-appellants.
jS. C. E. Rodrigo, for the 18th acoused-appellant.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
April 22, 1948. Nagaukgam J.—
The four appellants, who are the 2nd, 7th, 16th and 18th accusedin this case, appeal with leave of Court against their convictions ofthe offenoes of being members of an unlawful assembly, rioting, criminaltrespass and causing hurt.
Two main grounds have been urged on appeal, firstly, that improperuse to the prejudice of the appellants was made at the trial of the deposi-tions made by the witnesses before the Magistrate at the non summaryinquiry, and secondly, that in any event the verdict of the Jury cannot besupported having regard to the evidence in the ease.
The first question raises a problem of. some importance in the adminis-tration of criminal law. For a full and true appreciation of the pointraised, it is necessary as a preliminary to refer to certain of the salientfacts which are not in dispute. Two women were bathing at a well in theircompound, when three men from a military pioneer corps stationed notfar from their house came along a footpath that ran close to the well andon seeing the women one of the military personnel went up and got holdof one them. The women raised ories. Male members both from theirhouse and from nearby houses ran up to the soene and the army menperceiving them took to their heels ; one of ■ the Army men, however,was pursued and captured ; he happened to be the person who hadattempted to molest the woman. The other two Army men made goodtheir escape. The man who was seized was tied to a tree and detainedpending the arrival of the Headman, to whom a message was sent. Thisincident may be described as the first event in the series of incidentsthat took plaoe that day.
Shortly afterwards, four men from the camp came up and tried toinduce the captors of their companion to release him ; as they failedin their mission, they left the plaoe. This may be regarded as the seoondinoident.
A little later the officer in charge of the camp, one Lt. ftamaohandra,accompanied by seven or eight others, several of whom were non-Commis-sioned Officers, came to the scene and made a second attempt to persuadethe oaptors to surrender their captive. Lt. Ramachandra was told that
NAGALINGAM J.—The King v. Namasxvayam.
the man would only be released after the Headman’s arrival. Lt. Rama-chandra then appears to have called for a piece of paper and commencedto reduoe to writing the statements made to him. This may be ieferredto as the third occurrence of the series.
Next we come to the fourth and last episode : When Lt. Bamaohandrastarted to record statements, a whistle was blown and a orowd of abouttwo hundred men, all from the camp, rushed up to the scene, armed withstones and waving clubs, and they not only threw stones at the civiliansbut also assaulted them with dubs ; the house of the oivilian who haddetained the military man was also set fire to.
The indictment presented against the accused persdns was in respeotof the last incident, during the course of which the various offences withwhich they were charged are alleged to have been committed. Thedate of the offenoes was as far back as August 20, 1944, but the casecame up for trial only on January 19, 1948, that is, about three and ahalf years later. It is therefore not a matter for surprise that the witnessespleaded ignoranoe of faots whioh were sought to be elicited from them inexamination, with the result that the normal method of placing evidencebefore Court was to some extent deviated from and has given rise to theoomplaint of the appellants that the depositions before the Magistrate hadbeen used unfairly against them at the trial. The course the examinationtook of several of the witnesses may best be illustrated by referenoe to theevidence given by the principal witness in the oase, Bandahamy.
. After referring to the first event the witness spoke to the second inoidentand he said in answer to Crown Counsel that he remembered the presence ofthe 1st accused but could not remember whether he Was one of the four whocame. He further added he could not remember the presenoe of the2nd accused but said he thought the 4th acoused was there. CrownCounsel at this stage put the question, “ You told the Magistrate that the1st acoused was one of the four men who came up ? ”. Defence Counselobjected to the question and Crown Counsel dropped it. It will be noticedthat the witness had already said that he could not remember whetherthe 1st aooused was one of the four who came. The Court then intervenedand examined the witness as follows :—
Q.You told the Magistrate that four people came and one of them wasthe 1st accused. What you said in the lower Court, is that true ?
Q.If you told in the lower Court that the 1st accused was one of them,is that true ?
This examination resulted in establishing that although the witnesscould not now remember whether the 1st accused vas one of the fourmen who came, nevertheless, as he had spoken the truth before theMagistrate and as it now appeared that he had told the Magistrate thatthe 1st accused had been one of the four men who had come, it must follow•that the 1st acoused was in fact one of the four men.
NAQALTNGAM J.—The King v. Namasivayam.
The witness next spoke to the third occurrence of the d.iy whenthe batch of eight men came to his house. Crown Counsel asked himif he could say whether any of the accused was among them. Hisanswer wets :—
“ I was unconscious for several days. I was able to point outonly four out of the twenty-four prcd-iced in Court.”
The witness’s answer, therefore, amounted to this, that although hehad been in a position to point out at an anteccdsnt date four outof the twenty-four men produced in the Magistrate’s Court (therewere only nineteen accused persons indicated at the trial) he was thennot in a position to point out any. The Court thereupon againintervened and took up the examination :—
Q.You say eight people came up including an officer %
Q. Among the eight, you said in the lower Court, was the 1st,2nd and 17th accused. Is that what you, said in the lower Court true.
A. That is true.
Q.The 1st, 2nd and 17th accused are three who came with theeight ?
A. I was not able to identify clearly those eight people whocame but I was able to identify the officer.
Q. Then what do you say about the statement you made inthe lower Gowrt that you identified the 1st, 2nd and 17 th accused ?Is that correct, incorrect, false or true ?
A. I cannot recollect having pointed out three out of the eightbut I could remember generally that these three were present.
One effect of this examination, again, was to prove that the 1st,2nd and 17th accused had come with the eight although the witnesshimself could not then say so but only because he had so stated tothe Magistrate. Another and more conspicuous result was that thewitness’s attention was, if not improperly, at any rate unjustifiably,directed specifically towards three alone of the prisoners in the dock,thereby facilitating the concentration of the witness’s evidence onthem.–
As stated earlier, other witnesses too were similarly examined byCourt. It has been argued that the procedure adopted by the learnedtrial Judge tended very grievously to prejudice the accused. It can-not be emphasised too strongly that the crux of this case lay in theidentification of the offenders rather than in the proof of facts estab-lishing that offences were committed. The defence itself did notcontest the fact of the perpetration of the crime, hut what it did con-test was that the prisoners on trial were not those responsible forit. The question of identification, therefore, assumed very large pro-portions indeed in the eyes of the defence and overshadowed from itspoint to view every other question in the case. Where, therefore, awitness was unable to identify any particular prisoner, the procedureadopted in examining the witness unwittingly tended to bring aboutthe identification of that prisoner by an affirmation that the state-ment made by the witness identifying him before the Magistrate wastrue. It would be observed that no attempt was made to ask the
N’AGAX.rN’GAM J.—The King v. Namaaivayam.
witnesses whether, although, they may have identified certainprisoners before the Magistrate, they did in fact identify them thereagain, except that when such an attempt was made on one occasion,the witness (Bandahamy) proved himself unhelpful.
While it cannot be doubted that a Judge has very wide powers ofasking any question he pleases in any form and at any time of anywitness, we feel that those powers should not be so used as to affordground for the legitimate criticism that the accused persons have nothad the benefit of a trial which can be regarded as entirely fair.Had the learned Judge not himself pursued the question of identifica-tion at the stages at which he intervened, it is clear to see that CrownCounsel could not have taken the case beyond the stage of generalisa-tions by witnesses of acts done not by any particular prisoner butby some unidentifiable and unidentified persons. The cross-exami-nation then may have been able to consolidate the position of thedefence to more effective purpose.
It would not be inappropriate to refer in this connection to apassage in the judgment of Garth C.J. in the case of Noor Bux Caziet al. v. The Empress 1 :—
“ We find that on the examination in chief being finished theJudge questioned almost all the witnesses at considerable lengthupon the very points to which he must have known that the cross-examination would certainly and properly be directed. The resultof this, of course, was to render the eross-examination by theprisoner’s pleaders to a great extent ineffective by assisting thewitnesses to explain away in anticipation the point which mighthave afforded proper ground for useful cross-examination.”
There is also another aspect of the matter : the deposition of awitness before the Magistrate can properly be used for the purpose ofcontradicting a witness and not for the purpose of corroborating him.In the case before us the depositions of the witnesses were not madeuse of either for the purpose of contradicting or corroborating thetestimony given in Court. The witnesses were not asked -whetherthey had made a particular statement to the Magistrate or not Hadthey been so questioned the witnesses would have been free to admitor deny having made such a statement or e en plead lack of recollec-tion on the point. But what really was done was to ask the witnesswhether a particular statement attributed to him as having been madeby him to the Magistrate was true or not, thereby giving him noopportunity at all of admitting or denying that he had made theparticular statement or pleading -want of recollection. It is need-less to say that a witness can hardly bring himself to the positionof admitting that a statement made by him to the Magistrate wasnot true. The effect of this mode of formulating questions, therefore,was to let in at the trial the statements made by witnesses beforethe Magistrate as substantive evidence. It is hardly necessary toobserve that there is no warrant in our law for incorporating thedepositions taken by the Magistrate as part of the legally admissibleevidence against a prisoner at his trial.
1 (1880) I. L. R. 6 Cal. 279.
NAGALINGAM J.—The King v. Namasivayam.
Learned Crown Counsel submitted that the procedure followedwas intended to refresh the memory of the witnesses and was thereforejustified in law. Section 159 of the Evidence Ordinance was reliedupon. Commenting upon the corresponding section of the IndianEvidence Ordinance Woodroffe in his work 1 says :—
“ Here the writing is in the stricter sense used to refresh thememory, that is, the witness has a present memory of the factsafter the inspection of the writing. In this case the document isresorted to to revive a faded memory and the witness swears fromthe actual recollection of the facts which the document evokes.Memory is, in other words, restored.”
Apart from the difficult questions whether depositions made amonth at the earliest after the event and whether a deposition whichis not read over by the witness but read to him can be regarded asfalling within the ambit of this section, it is manifest, in view ofwhat has been said already, that here the depositions before theMagistrate were not used to revive a faded memory but for an alto-gether different purpose. Besides it is essential not to lose sightof the fact that in a trial before a Jury the reading out of thedeposition makes the contents thereof available to the Jury, while ifthe section is adhered to in the light of its proper construction, thewitness can, only be permitted to look at the document himself andthen to state whether he recollects the facts or not. Further, aspointed out earlier, the depositions were made use of to enablewitnesses to identify accused persons. One would have thought thatthe best possible method of refreshing the memory in such a case wasto call upon the witness to look at the accused persons themselves andsay whether the features of the prisoners evoke a response in thechords of their memory. But to read to a witness a passage in hisdeposition showing which of the accused persons he had identi-fied earlier is not calculated to stimulate the memory at all. Ifa witness after looking at the men in the dock is unable to identifythem, how can he by merely looking at (or being read to) a documentwhich gives certain numbers, when those numbers do not even cor-respond to the numbers borne by them as they stand in the Courtof trial, excite his memory as to the identity of the individuals ? Infact what w£us done in certain instances was to read the. relevantstatement in the deposition after making the necessary alterationtherein after study of the numbers found in it, the names of theprisoners and the numbers they bore in Court, before putting it tothe witness with a view to point to the witness correctly the prisonerswhom he had pm-ported to identify before the Magistrate. Thisprocess cannot by any means be said to be a method of refreshing• the witness’s memory. It is far removed from . that. In reality itis a naked act simpliciter of telling the witness in a direct maimerthat he had pointed out rhe prisoners who are now pointed out tohim in Court.
The case of Queen v. Williams et al 2 was also cited as lendingsupport to Crown Counsel’s proposition. In that case a prosecution1 Evidence : 9th ed. p. 1029.* (1853) 6 Cox 343.
NAGALINGAM J.—The King e. Namnaivayam.
witness made a statement in examination in chief inconsistent withwhat he had previously sworn at the inquest before the Coroner.Counsel for the Crown showed him his deposition to refresh hismemory and on repeating the question the witness adhered to thestatement he had already made in Court. Thereupon the question wasrepeated in a leading form. Objection taken by defending Counselto the form of the question was disallowed by Court. It will beseen that firstly the deposition made use of was one made at theinquest and therefore very probably within twenty-four or forty -eighthours of the commission of the offence, secondly the witness hadalready made a statement inconsistent with his previous depositionbefore the deposition was permitted to be shown to- him, thirdly thequestion in its original form was repeated after the witness hadperused the deposition, fourthly, after the witness continued topersist in contradicting the deposition, it was that the question wasallowed to be put in a leading form. Not a single of these severalsteps was taken in this case and what is more the witness was madeto adopt or treated as adopting the statement attributed to him.This case is therefore of no assistance to the Crown at all.
The question must now be considered as to what the effect of lettingin this evidence was or would have been on the Jury. In his chargeto the Jury in dealing with this subject, the learned trial Judgedirected them as follows :—
“ Then, gentlemen, you will have to go on the evidence whichis given in this Court. If a man says * I did not make a statementat another place ’ although it is proved to your satisfaction thathe did make it, that is not substantive evidence on which youcan act. You cannot say ‘ The man said such and such a thingthere. We will take that as evidence in this case.’ You cannotdo that ”.
The learned Jucigc, however, did not point to the Jury what theposition was in regard to the statements said to have been made bywitnesses before the Magistrate but which were not provedto have been so made by them nor even indeed as to what the effectwas even if so proved in the absence of affirmative evidence in Courton the part of i'-*e witness reiterating the statement alleged to havebeen made before the Magistrate. In the absence of a direction onthis point the Jury -may very well have taken the view that all thestatements incriminating the various accused persons and allegedto have been made before the Magistrate and declared by the witnessesat the trail to have been made truthfully by them was evidencewhich they could properly take into consideration against the prisonersin arriving at their verdict. In fact it will be very difficult to saywith any degree of confidence that such an impression may not havebeen formed by the Jury, especially when one bears in mind that itwas not a lone witness who gave evidence in that manner but serevalof them and no words of caution were addressed to them not to treatas evidence in the case the statements which were alleged to havebeen made before the Magistrate. In this view of the matter themajority of the Court are unable with any degree of certitude to
NAGALUNTGAM J.—The King v. Namaaivayam.
say that the verdict of the Jury may not have been based upon illegaland inadmissible evidence. The convictions cannot therefore besustained.
There is also considerable force in the argument that theverdict cannot be sustained having regard to the evidence in thecase. It will be convenient to deal with the case of the appellants inthe reverse order to that in which their cases were presented.
To take the case of the 18th accused first, the evidence againsthim is said to be that of Podiappuhamy and Ausadahamy. Podiap-puhamy’s evidence clearly establishes that he was one of those whohad come up in the group of eight men with the officer. It is tobe noted that the indictment does not refer to what has been termedthe third occurrence, for in fact at that stage no offence was com-mitted. Podiappuhamy, it is true, did state that the eight men“ got together along with those who came and partook in the assaultalong with the other ”. However, he expressly states that henoticed no weapons in the hands of anyone of the eight and thathe did not see any of them whom he identified actually takingpart in the assault. Ausadahamy died before trial and his depositionbefore the Magistrate was read in evidence as part of the case forthe Crown. He also says that the 18th accused was one of thosewho came with the officer. He further says that the eight menjoined the crowd that came rushing up Sut he himself does not saythat the men with the officer did anything themselves.
Learned Crown Counsel also pointed out that the witness Kiribandaincriminated the eight persons who came with the officer. Thiswitness said that the overseer, meaning thereby the officer, stretchedout his hand and said, “ Ha, Ha, ” but instead of paying heed tothe overseer the eight men rushed at Bandahamy. This is a verygeneral statement and in view of the evidence that not one of theeight men was armed and that it was the crowd that came thereafterthat was armed with clubs and stones, it is not possible to attachvery great- weight to this witness’s testimony to the extent of lettingit override the other evidence in the case. Taken as a whole theevidence against the 18th accused does amount to no more thanproving that he was one of those who had accompanied the officer,and discloses at best no more than a case of suspicion.
To turn to the case of the 16th accused, it is said that Ausadahamybrings home guilt to him. Ausadahamy identifies him as one ofthose who came with the officer and, as already stated, beyond hisstatement that the men with the officer joined the crowd, there isnothing to indicate that the 16th accused or any of the other didanything at all. It must also ne noted that Ausadahamy, althoughhe purported to identify the 16th accused on the first day he gaveevidence before the Magistrate, in cross-examination at a later datewould not identify him. Ausadahamy also failed to identify the16th accused at the identification parade held soon after the incidentby Inspector Jonklaas. Ukkuamma is another witness upon whosetestimony a certain amount of reliance is placed but her evidence, inaccepted, contradicts that of Ausadahamy and goes only to show thatthe 16th accused was one of the three men who went up to the
NAGALINGAM J.—The King v. Namaaivayam.
•well at the time of the first .incident and was not seen thereafter.The case against the 16th accused is weaker even than that againstthe 18th accused.
The case against the 7th accused is also unsatisfactory. The onlywitness who identifies him is Rambanda. At the date this witnessgave evidence he declared his age to be fifteen years. At the dateof the offence, therefore, he must have been a lad of eleven or twelveyears. His evidence, placing upon it the greatest weight one can, showsthat he saw the 7th accused among the crowd of two hundred peoplewho came throwing stones and waving clubs. He does notspecifically state that the 7th accused was armed, himself nor thathe did any specific act. There is no other evidence which toucheshim. The majority of the Court think it quite unsafe to base aconviction on the uncorroborated testimony of a little boy whohimself is not prepared to say any more than that he could only pointout roughly the persons whom he saw. The qualifying epithet“roughly” cannot be ignored, and the possibility of a mistakecannot be entirely negatived.
The case against the 2nd accused may on first impressions appearto be stronger than that against the other appellants, but on ascrutiny of the evidence against him, it appears to be just as hollowas that against the others. Bandahamy’s evidence is not referredto by the trial Judge as one that implicates the 2nd accused forgood reasons. The witness purported to identify before theMagistrate the 2nd accused as one of the eight who came with the-officer and his evidence is that he was one of those who assaultedhim. Under cross-examination in the Magistrate’s Court, however,at a later date, he resiled from the position that the 2nd accusedhad come with the group of eight men and took upon himself to say thathe had come with the crowd of two hundred persons. This latter,statement, it is obvious, is entirely incorrect in view of the otherevidence in the case. If Bandahamy did identify the 2nd accusedas one of the eight, it is impossible to believe that he could havemade the mistake of saying that the 2nd accused came with thecrowd. The question then arises whether any reliance can be placedon Bandahamy’s identification or whether it is not more likely thatBandahamy, who had been severely assaulted and had receivedinjuries on the head, himself did not see his assailant but on returningfrom hospital had received information from the other witnesses asto who his assailant or assailants were and hence his vacillation. Tostate the proposition in another form Bandahamy after seeing hisassailant once was able to identify him but after seeinghim twice he could not. Podiappuhamy says that he saw Bandahamybeing struck but he is explicit in his statement that although heidentified the 2nd accused as one of those who were there and hadcome up with the group of eight with the officer and asked for therelease of the man who had been tied up, the 2nd accused as wellas the other eight were unarmed and that he did not see the 2ndaccused assault anybody. The boy Rambanda. also identifies the2nd accused as being amoi^ the group of eight that came with the25 – N.L.R. Vol – xlix
Velun Petri* v. The Inspector of Police, Moratuwa.
officer. This is common ground. He, however, expressly states thatthe 2nd accused assaulted Bandappu. I have already discussed theweight to be attached to this boy’s evidence, and as his evidence iscontradicted by Podiappu, I do not think any reliance can be placedupon his evidence. There are other witnesses who refer to the 2ndaccused, for instance Dingiriamma, who says that he came with thefirst group of four and that he saw the 2nd accused speak to Banda-hamy when he came with the group of four. This is obviously acase of mistaken identity. There is also the evidence of Kiribandawhich, as has already been pointed out, is of a general characterand which shows that the eight men took part in the assault whichagain is in the teeth of the evidence of other witnesses, notably ofPodiappu himself. The 2nd accused’s case is again one that in theview of the majority of the Court cannot be said to have been carriedbeyond the field of suspicion.
For these reasons too the majority of the Court think that the con-victions of the appellants cannot be allowed to stand. The Court isunanimously of opinion that the convictions of the 16th and 18thaccused should be set aside and the majority of the Court are ofopinion that the conviction of the 2nd and 7th accused should alsobe set aside.
There remains for consideration the cases of the other prisonerswho have been convicted and who have not appealed. We do nothave powers to make any order in regard to them, such, for instance,as the Supreme Court in its appellate jurisdiction possesses, to actby way of revision in regard to accused persons who have notappealed. But we have power to extend the time if application forleave to appeal is made to us. See the case of Mary Priestley l.We can only indicate, which the majority of us dp now, that shouldthe other prisoners apply for leave to appeal notwithstanding lapseof time we would be prepared to consider their applications.