059-NLR-NLR-V-18-THE-KING-v.-PERERA-et-al.pdf
( 215 )
Present: Wood Benton C.J.THE KING t>. PEBEBA et aL
1916.
53 and 54—D.C. (Crim.) Kahtiara, 2,314.
Witnesses named on theback of Use indictment—Should the Crown callall
the witnesses sonamed ? — Bightofaccused -to cross-examivc
witnesses not called by the Crown.
In a criminal prosecution the Crown should as an ordinary ralecall the attention of the Court and of counsel for the accused tothe fact that it does not propose tocallcertainwitnesses asits
own, should state the reason why this is considered undesirable,and should tender the witnesses in question to the – accused forcross-examination. It is equally desirablethat counsel for the
accused should actively watch the proceedings of the Crown is thismatter, and should ash that any witness whom the Crown does notpropose to examineshould he called, ifherequiresthe evidenceof
that witness for any • purpose. The Courts of first instance , shouldenter as matter of record everything that bad taken place in thisconnection.j *
* Um) i a. c. bS s»p. iv.
3 (1909) Appeal Cases 312.
1 {1005} 2 Bel 69.
( 216 )
1916.
The King9. Perm
T
HE accused in this case was couvict-ed in the District Courtof K&lutara of having’ caused grievous hurt to a girl Baba
Nona and hurt to her mother Meihamy. The first accused wassentenced to six months' rigorous imprisonment on .the fimt countand one month’s rigorous imprisonment on the second. The secondwas sentenced to twelve months’ rigorous imprisonment on thefirst count and one month’s rigorous imprisonment on the second.The accused appealed.
t M. tie Saram. (with him A. St. V. Jayewardene), for tlieappellants.
F. Af. Fernando, G.G., for the Crown.
April 29, 1915. Wood Renton C.J.—
His Lordship, after dealing with the other points raised, con-tinued:—
The other point .taken in support of the appeals is, however,more important, and as it is constantly raised both in the Courts offirst instance, in the Supreme Court on the hearing of single judgeappeals, and in the Assize Court, I propose to deal with it in detail,in the hope of being able to lay down certain principles which maybe of practical use to the legal profession and to the Courts them-selves. The point is made in Hie petition of appeal that the Crownhad failed to call at the trial in the District Court a certain womannamed Wasanahamy, who had been examined in. the Police Court,and whose name was on the back of the indictment. In her deposi-tion in the Police Court this woman had stated that she didnot see the stabbing of the girl Baba Nona. The accused's counsel,Mr. F. M. de Saram-, strenuously argued, in the first place, that theCrown was under a general obligation to call every witness whosename was on the back of the indictment; and, in the second place,that if this woman had been examined, her negative evidence inregard to the stabbing would have shaken the faith of the learnedDistrict Judge in the story of the other witnesses who gave positiveevidence on the same point. If I had been persuaded that this lattercontention were sound, I should certainly at least have sentthe case back for further inquiry and adjudication. But I do notsee anything in the evidence of Wasanahamy which is necessarilyinconsistent with that of the other witnesses. She was at a distanceof seven or eight fathoms from the struggle, and while she speaksto the use of a mamoty, which could easily be seen, she maywell have not perceived the use of such an instrument as a knife.Moreover, this witness does say that she saw Baba Nona bleedingfrom her fovehead, and the medical evidence establishes the factthat the in] ary on Baba Nona’s forehead was caused by a sharpcutting instrument. But while this* would be sufficient for the
( 217 )
purpose of disposing of these appeals, I desire to say something as*****
to the position of the Crown in regard to the calling of witnessesWood
whose names appear on the back of an indictment. The question Rbhtok Cwas raised before me many years ago in the AitygaUe murder oase, The Kingand i dealt with it there, both In the form of an incidental ruling v***erer0and, I think, also in my charge to the jury. So far as T am aware,however, there is nc official report either of tire argument or of mydecision upon it in that oase. By the law of England a prosecutorwas never in strictness bound to call every witness whose namewus on the back of the indictment (see Bex v, Simmond«l). Butthe practice was that all such witnesses should ordinarily be calledso as jbo afford the prisoner’s counsel an opportunity for cross-examining them, and if counsel for the prosecution declined to doso, the Judge might call the omitted witness or witnesses himself.
Even where it was not the intention of the prosecution to call allthe witnesses whose names appeared on the back of the indictment,the prosecutor was expected to have them all in Court, so that theymight be called for the defence if they were wanted for that purpose.
It is scarcely necessary to add .that a witness for the prosecution,if called by counsel for the accused, became his own witness. Soas to avoid the obvious inconvenience of this result to accusedpersons, the practice was for the prosecution, or, on the failure ofthe. prosecution, for the Judge, .to direct that any witness whomthe prosecution did not propose to call in support of liis own case,and whom the defence desired to be put into the box, should betendered for cross-examination. These general rules are, however,subject to two qualifications. The Crown is under uo obligationto call witnesses whose evidence it regards as unnecessary in viewof evidence which has already been given. Nor. while it has noright to withhold a witness merely because his testimony may helpthe case for the defence, is it bound .to adopt as its own witnesseswhom it alleges to be dishonest. . The latter part of this propositionrests upon clear and sound considerations of policy. If theprosecution were obliged to put forward at a criminal trial as itsown every witness who may have been examined in the PoliceCourt, or whose name may appear on the back of the indictment,it would not be difficult for the defence—and the suggestion, I mayadd, in the Attygalle case was that this had been. done—^to foistupon the prosecution a witness whose evidence was important,but at the same time was not only false, but demonstrably false.
This false evidence would be destroyed by cross-examination at thetrial, and would bring down along with it the whole fabric of whatwas otherwise a perfectly truthful case. These, as I understandthem, ere the rules in force in England in. regard to the questionwith which 1 am now dealing. They are also in force in India.
It will be sufficient forme in this connection to refer to the cases of
' (182S 1 Car, <f* Pay. M.
( 218 )
Queen Empress v. Tulla 1 * and Queen Empress v. Darya. 3 The onlyWoo > express authority bearing upon the question in Ceylon, apart fromRnnton 0.J. my unreported decision in the Attygatte case, is that of Sir JosephTfaKitw Hutchinson C J. in Bex v. Fernando*. But T have myself uniformlyv. Pvrem followed the English rules- in practice here. Sir Joseph Hutchinsonin Bex v. Fernando 3 indicates that he had taken the same coursein regard to. the tendering of witnesses for cross-examination, andI am inclined t-o think that the practice, at least in recent years,has been uniform on the same lines. It results from what I havesaid that in a criminal prosecution the Crown should,, as an ordinaryrule, call the attention of the Court and of counsel for the accusedto the fact that it does not propose to call certain witnesses os itsown, should state the reason why this is considered undesirable,and should tender the witnesses in question to the accused forcross-examination. It is equally desirable that counsel for theaccused should actively watch the proceedings of the Crown inthis matter, and should ask that any witness whom the Crowntloes not propose , to examine should be called, if he requires theevidence of that witness for any purpose The Courts of firstinstance also should, I think, enter as matter of record everythingthat has taken place in this connection. In the present appealsthere is nothing on .the record to show what happened at the trial.Tho accused do not Allege in their petitions of appeal that they everlinked counsel for the Own or the Court to put the woman Wasana-haroy into .the witness box, and the case has had to be argued herein the absence of any information upon that important point.As I have already said, if I had thought that the evidence ofWasanahamy could have, or probably would have, affected theview of the Judge with regard to the case as a whole. I shouldcertainly have interfered. But I see no reason for thinking thatthis result would have followed if she had been examined.
The appeals must be dismissed.
Appeals dhinifseef.
♦
1 l*885) L J*' R- 7 All. 904.a /. h. R.,10 All. 84.
3 (1908) 2 Leader L. J?. 81.