THE KING v. PILA et al

129-NLR-NLR-V-15-THE-KING-v.-PILA-et-al.pdf


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[Full Bench.]
Present : Lascelles C.J. and Wood Renton and Pereira JJ.THE KING v. PILA et al.
12—P. C. Avissawella, 12.087.
Evidence of bad character, of accused who were charged with murder—Notobjected to attrial—Pointcertified by Attorney-General under
s. 355(3),CriminalProcedureCode—Right ofthe Attorney-General
to certify—Admissibility of evidence.
Theaccusedin thiscase werecharged withmurder. A principal
witness forthe prosecution explained hisdelay inreporting what
he had seen by hig fear of the accused, who, he said, were " reputedrowdies.” Inorder to corroborate him,evidencewascalled to
provethat theaccusedwere byrepute men ofbad character, and
weregenerallyfearedby thevillagers. Thisevidence was not
objected to in any way by counsel for the accused, and no appli-cation was made by him to the presiding Judge to state a case in✓-terms of section 355 (1) of the Criminal Procedure Code:
Held, thatthe evidence called to provethat theaccusedwere by
repute men of bad character and were generally feared by thevillagers was inadmissible.
The Attorney-General may certify under section 355(3) any
question oFlaw arising on a criminaltrial before theSupreme
Court, thoughthe. questionhasnot beenactually raised. and
debated at the trial.
Per TiASCF.LLES C.J. and Woou Keaton J.—The Attorney-General, in certifying a case for consideration by this Court, acts ina .quasi-judicialcapacity, andtheproper andconvenient course is
for him, after signing the certificate, to leave the case for theprisoner in the hands of his counsel, and to arrange that the Crown•is adequately represented.
Pet PereiraJ.—A counselwhodeliberatelyand studiedly omits
to object to the' reception of inadmissible evidence does so at therisk of his client.
T
HIS case came up for review on a certificategivenby the
Acting Attorney-General (the Hon. Mr. J. van Langenberg,
K.C.) in the following terms: —
In the Supreme Court op the Island op Ce*lon
:Case No. 12 (Police Court, Avisawella. 12,087),
tried before the Hon. Mr. Justice Wood Renton at the Sessions nowbeing held at Kandy..
The King vs. Egodagb Pila el al.
1918.
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To the Honourable the Chief Justice and the other Justices of thesaid Court.
J, James van Langenberg, Acting Attorney-General, certify that 1am of opinion that the question .of law hereinafter stated arising on thetrial of the above case ought to be further considered, and submit thesame to this Honourable Courtfor finaldeterminationunder . section
865 (3) of the Criminal Procedure Code.
In this case the accused above named were charged with the murderof one Ungi, a- Sinhalese woman about seventy years of age. Theaccused were found guilty and sentenced to death.
The facts of the case are shortly as follows. The deceased Ungi lefther villageonsome day in the month of June lastto visit herdaughter
Sooti atavillage called Uda Kanugalla. Shenever reached her
destination. Her remains were found on July 7 in a jungle skirting theroad she had to. take. The inference from the medical evidence is thatdeath was due to violence. A witness, Adonissa, gave evidence to theeffect that he saw the accused dragging the deceased into the junglenear about where her body was subsequently found. As he wentforward to help her, the second and third accused threatened him withknives. Whenfirst questioned by the Korala,he said he knewnothing.
Subsequently, on July 13, hemade astatementtothe Magistrate
implicating the accused. The reason he gave for not disclosing thesefacts earlier was that the accusedwere badcharacters,andhe was afraid
of them.Inorder to corroborate him, evidencewas calledto prove
that the accused * were by repute men of bad character, and weregenerally feared by the villagers.
It is submitted for the decision of Your Lordships whether theevidence relating to' the characterof the accused wasadmissible, in view
of the terms' of section 54 of the Evidence Ordinance of 1895. Theevidence was not objected to in any way by counsel for tbe accused,and no application was made by him to His Lordship Mr. Justice WoodRenton to state a case in terms of section 855(1) of t-ho Criminal
Procedure Code.
van Langenberg, K.C., Acting A.-G. (with him Baica, K.C.,Acting S.-G.), appeared in support of the certificate.—[ChiefJustice.—The Attorney-General has merely to certify the point oflaw and leave it to the counsel for the accused to argue the point.]I appear only in support of the certificate.
[The Chief Justice referred to R. v. Brown,l]
The power of the Attorney-General to certify a point that has notbeen raised at the trial has been recognized in India. See Emperorv. Narayati. 2 In that case one of the Judges seems to admit thateveu if the certificate covered a point not raised at the trial theCourt might consider it (see page 146).
[Wood Benton J.—The section 355 (3) says that the Attorney-General may certify a point arising at the trial -for the furtherconsideration oi' the Supreme Court. Does not that imply that thepower of the Attorney-General to certify is limited only to pointsthat were raised at the trial?]
i (1890) 84 Q. B. D. 867.2 (1907) 32 Bom. 111.
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All points as to the admissibility of evidence are presumed tohave been considered by the Judge at the trial. It is the duty ofthe Judge to stop inadmissible questions. R. v. Ellis.1
A. St. V. Jayewardene, for the accused.—The evidence that theaccused were generally of bad repute is inadmissible under section 54of the Evidence Ordinance. [Pereira J.—Would it be admissible ifnot objected to ? ] No. See R. v. EUis. 1
“ The statute provides that the question shall not be asked. Thereason of this is plain, because in most eases the mischief is done by theasking of the question. The jury naturally assume that no such questionwould be put unless there was foundation for it, and the more objectionis made to it by the prisoner’s counsel, the stronger to their mindsbecomes that assumption.”
See also Miller v. Das,2 The Queen v. Gibson.3
Saram, C.G., contra.—The evidence objected to was admitted toexplain the conduct of Adonissa. in delaying to report what he sawthrough fear of the accused, who were, in his opinion, reputedrowdies. The evidence is admissible under sections lb, 14, and15 of the Evidence Ordinance.
[Pereira J.—Section 54 is a later section, and therefore qualifiessections 11, 14 and 15.]
The Attorney-General does not have the power to certify a pointthat was not actually raised at the trial.
A. St. V. Jayewardene, in reply.—When a question is allowed bythe Judge there is a judicial decision as to ijfcs legality, though it maybe a merely mental adjudication.
The terms of section 11 are extremely wide, and must be readsubject to the restrictive operation of the other sections of the Act.Amir Ali 57.
November 11, 1912. Lascelles C.J.—
His Lordship set out the facts and continued ;—
Cur. adv. vult.
The procedure adopted in bringing this case before the Court inmy opinion, calls for comment. The Attorney-General, in certifyinga case for consideration by this Court, acts in a quasi-judicialcapacity,, and the proper and convenient course is for him, aftersigning the certificate, to leave the case for the prisoner in thehands of his counsel, and to arrange that the Crown is adequatelyrepresented. Whereas in this case both the acting law officersappear in support of the certificate, and the Attorney-General objectsto the Crown Counsel (his own subordinate officer) questioning the
1 (1910) 6 Crim. 4pp. Rep. 41.2 (1896) 19 All. 76.
* (1887) 18 Q. B. D. 537.
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legality of the certificate, which was fairly open to -objection; it isobvious that the case for the Crown is presented to the Court underthe most embarrassing conditions. It is essential in the interests ofjustice that the case for the Crown, as well as that for the accused,should be fully and freely placed before the Court.
Before dealing with the substantive question referred to us fordetermination, the preliminary point arises whether, in view of theterms of section 856 (8) of the Criminal Procedure Code, it is com-petent for the Attorney-General to certify in this case, inasmuch asthe evidence which is now questioned was admitted at the trialwithout objection. or discussion. The Attorney-General, by section355 (3), is empowered to certify ‘‘ any question of law arising on suchtrial which has not been reserved ” under the preceding sub-section,and which he is of opinion “ ought to be further considered.” Theexpressions “ arising on such trial ” and “ ought to be furtherconsidered ” suggest the conclusion that the object of the sectionwas to provide a remedy in cases where there had been an erroneousdecision on a question of law at the trial, and the Judge had refusedto reserve a case under section 355 (1).
Apart from authority, I should have found it difficult to take adifferent view of the scope and intention of the sub-section, and Ishould have been inclined to construe the section as applying onlyto questions of law which had been specially raised and decided atthe .trial. But under section 1 of " The Crown Cases Act. 1848,” thelanguage of which,- though not identical with, is very similar to, thatof section 355, a more liberal view has been taken of the powers of aJudge to reserve a question of law.
The Trial Judge by that section is authorized to reserve '' anyquestion of law which shall have arisen at the trial.” In R. v.Brown1 the. prisoner had pleaded guilty, and after the Judge left theassize town his attention was called to a case which in law showedthat the indictment was bad on its face; he thereupon stated a case,and it was held that the objection to the indictment was “ a questionwhich had arisen at the trial ” 60 as to give jurisdiction to the Courtfor Crown cases reserved, the ratio decidendi being that the questionarose as soon as the indictment came before the Court.
This decision represents the construction which in England hasbaen placed on an enactment very closely resembling section 855 ofthe Criminal Procedure Code—an enactment, moreover, which isprobably the model on which section 355 was framed. I am ofopinion that we should not adopt a less liberal view of the scope ofsection 355 than that which has been taken in England with regardto the parent statute. The circumstance that this section providesthe only means for correcting errors of law in trials before theSupreme Court is another objection to any construction of the sectionwhich would have the effect of restricting its operation.
' (1390) 24 O. B. n 357.
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It is clew on the authority of R. v. Brawn1 that the Judge, if hehad thought fit, might in the present case have stated a case undersection 355 (1), and if this is so, it follows that the Attorney-Generalcould have certified under section 355 (3), for the words “ which hasnot been reserved under this section ” indicate that the Attorney-General is empowered to certify in all cases where the Judge mighthave reserved a case for the Full Court. I am, therefore, of opinionthat the Attorney-General had power to certify this question forour determination, and that we have jurisdiction to deal with it.
The evidence to which objection is taken may be shortly described.Adonissa, the witness on whose testimony the conviction principallydepends, explained his delay in reporting what, he had seen by hisfear of the accused, who, he said, were “reputed rowdies’*. Noobjection is now made to Adonissa’s evidence. Mohotti Banda, theGan-arachchi of the village, deposed that " the general reputationof the accused is that they were gamblers, drunkards, and thieves,”and that almost every villager gave the accused a bad reputation.Don Amaris, a clerk employed' at the plumbago pit where the accusedworked, stated that the reputation of the accused was bad, that thevillagers were afraid of them, and .that almost every villager gavethem a bad name.
The question is whether this evidence should have been admitted.
Under section 54 of “ The Evidence Ordinance, 1895,” the fact thatan accused has a bad character is irrelevant unless evidence is giventhat he is of good character. The evidence is thus irrelevant unlessits admission can be justified under any other section in the Ordi-nance. It has been suggested that the evidence of the bad characterof the accused is admissible under section 14, which permits evidenceto be given showing the existence of any state of mind towards anyparticular person when the existence of any such state of mind is inissue or relevant.
No objection could, I think, be taken to evidence to show thatthe accused, in their dealings with Adonissa, had so conductedthemselves that the latter had reason to stand in fear of them, eventhough such evidence amounted to evidence that the accused hada bad character. But the general evidence that the accused hadthe reputation of being “ gamblers, drunkards, and thieves ” goesbeyond this.
If evidence of the general bad character of accused persons isadmissible to explain delay on the part of the witnesses for theprosecution in coming forward with their evidence, one wouldexpect to find authority for the proposition- in the Indian LawReports, for it is the commonest thing in the world for witnesses toexplain their delay in coming forward by stating that they wereafraid of the accused. But no such authority, has been cited, norhave I been able to discover any.
i (1890) 24 Q. B. D. 357.
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It was argued by Grown Counsel de Saram that the evidence wasadmissible under section 11 (2), which provides that facts not other-wise relevant are.-relevant if by themselves or in .connection withother facts they make the existence or non-existence of any factin issue or relevant fact highly probable or improbable. But theillustrations to the section and the decisions which are collected byAmir Ali and Woodroffe (Law of Evidence Applicable io. BritishIndia) show that this section was intended to admit a class ofevidence altogether different from that now in question.
In my opinion the evidence in question is inadmissible,, as beingevidence of bad character irrelevant per se, which is not made relevanteither by section 11 or section 14 of the Ordinance.
There can be no question but that this Court, under section 167 ofthe Evidence Ordinance, has power to uphold the conviction, if weare of opinion that the evidence improperly admitted did not affectthe result of the trial.
It is always difficult in a case tried by jury to form an opinionwhether and how far the mind of a jury has been influenced by anyparticular class of evidence. But a conviction cannot be sustainedwhen irrelevant evidence has been admitted which might haveswayed the mind of the jury.
The defence in the case under consideration was that the evidenceof the alleged eyewitness Adonissa was false; that he was himselfimplicated in the murder; and that his evidence at the trial was theculminating point of a series of false charges brought by him againstthe accused. In electing whether to believe the witnesses for theCrown, or to adopt the theory of the defence, it seems to me to benot impossible, and even probable, that the jury might have been tosome extent influenced by evidence that the general character ofthe accused was bad, and that they were “ gamblers, drunkards,and thieves,” and that the villagers were frightened of them.
The conviction, in my opinion, cannot stand, but it is clearly nota case where the accused should be acquitted. There can be nodoubt of the power of this Court, under section 355 of the CriminalProcedure Code and section 40 of the Courts Ordinance, to order anew trial, and this, I think, is the proper course to adopt in thecircumstances of this case.
I would set aside the conviction and sentence, and order theaccused to be tried again at the next session of the Supreme Courtat Kandy, the accused to be remanded in custody pending theirre-trial.
Wood Renton J.—
This case comes before the Supreme Court on a certificate by theActing Attorney-General under section 355 (3) of the CriminalProcedure Code. . The accused were tried before me and an English-speaking jury at the recent Kandy sessions on a charge of having
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murdered an old woman named TJngi. The chief witness for the1912.
prosecution was a man named Adonissa, who gave evidenoe directlywood
connecting all three accused with the murder. When he was first Renton J.questioned on the subject, however, by the police officers investi- Theminggating the case, Adonissa denied that he knew anything about it. v. POaHe subsequently gave to the Police' Magistrate, in private, theincriminating evidence above referred to, and accounted for hisoriginal silence by saying that he was afraid of the accused. In orderto corroborate him on this point, Crown Counsel proved that all threeaccused were reputed rowdies, of whom villagers like Adonissa werein fact afraid, whether rightly or wrongly. No objection was takento this evidence by counsel for the defence. On, the contrary, hestated in his address, to the jury that he did not object to it, and headopted it for the purpose of developing a line of defence, which, inthe ultimate view that I have come to take of the present case, itis unnecessary and undesirable to discuss. The jury unanimouslyconvicted the accused, and they were sentenced to death. Noapplication was made to me at the close of the trial to reserve thequestion whether the evidenoe above mentioned as to the general .reputation of the accused was admissible or not. The ActingAttorney-General, however, has brought that question before theSupreme Court by a certificate under section 355 (3) of the CriminalProcedure Code.
The first point that arises for consideration is whether he has anypower to do so. My own original view of the scope of section 355was that under sub-section (1) even the Judge presiding at a trialwould have no power to reserve any question of law, unless in someform or other it had “ arisen ” as a question of law in the course ofthe trial. There appeared to me to be an even greater difficultyin the way of the Attorney-General granting a certificate undersub-section (3), inasmuch as under that section he can certify onlyquestions arising at the trial, and which, in his opinion, ought to be“ further considered. ” The latter words seemed to me to point to>the conclusion that there was no power of certification, except inregard to questions which could be said to have both “ arisen ” andto have been in some wav or other “ considered ” in the course ofthe trial.
The English decisions under the analogous section in the CrownCases Reserved Act, 1848 (IT and 12 Viet., c. 71, s. 1), have beenconflicting. It was held in R. v. Clark1 that where an accusedperson had pleaded guilty to a charge, which the facts stated inthe depositions did not substantiate, his plea of guilty estoppedhim from. afterwards disputing the conviction, inasmuch as theinsufficiency of the evidence was not a question that had “ arisenon the trial. That decision was, however, dissented from in thelater case of R. v. Brown,1 to which my Lord the Chief Justice‘ (1866) L. R. 1 C. C. R. 54.* (1890) 24 Q. B. D. 357.
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W2.directed attention during the argument, and B. v. Brown1 was
Woodfollowed in the still more recent case of B. v. Plummer.* I think
RbntonJ. we ought to adopt the wider view, supported by the laterThe Kingdecisions, in regard to the power both of a Judge of trial to
ti. Pitareserve a case under sub-seotion (1), and in spite of the words
“ further considered"—the presence of which may be due tosimilar language in the Letters Patent constituting the CharteredHigh Courts in India—of the Attorney-General to certify undersub-section (3), of section 355 of the Criminal Procedure Code.To hold that, whenever any piece of evidence has been given, everyquestion of law that is capable of being deduced from it has poten-tially " arisen on the trial " within the meaning of section 355 ofthe Criminal Procedure Code, even although no allusion to it hasbeen made by either side when it was adduced, and may be reservedor certified at any period thereafter during the currency of thesentence passed on an accused person after verdict, is no doubt, atfirst sight, a somewhat startling preposition. But the law mayfairly be held to have presumed that the authorities whom it investswith this power will exercise it with discretion, and its existence mayfrom time to time serve a useful purpose. Many accused personsare undefended. The work of the Assize Courts involves a severemental strain on all who take part in it. An important point of lawmay pass unnoticed. The proper procedure to be adopted -undersection 355, sub-section (3), of the Criminal Procedure Code is amatter for careful consideration. The position of the Attorney-General under that section is a quasi-judicial one. I think that itscharacter would be more easily preserved if the Attorney-Generalwere merely to certify the point of law which he desires to submitto the Supreme Court, and then leave it to be argued by counsel forthe defence on the one side and counsel for the Crown on theother. This would seem to be the practice in India. See QueenEmpress v. O'Hara.3 But be that as it may, there is one pointin respect to which the course pursued in the present case shouldin future be avoided. The Acting Attorney-General, after firstappearing with the aid of the Acting Solicitor-General in supportof his certificate, objected to the counsel—Mr. W. S. de Saram,C.C., who was supporting the conviction—arguing the importantquestion of the right to certify otherwise than as amicus curia.That objection ought not, I think, to have been taken. The Courtis entitled, in cases of this kind, to the full and unfettered assist-ance of the counsel who is supporting a conviction as well as ofthe counsel who is seeking to set it aside.
The next point is whether, even assuming that exception couldhave been successfully taken in this case to the evidence of the badgeneral reputation of the accused at the time when it was tendered,
» (1890) 24 Q. B. D. 667.* (1902) 2 K. B. &<*.
» (1890) I. L. B. 17 Cal. 642.
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such evidence can be impeached as inadmissible, now, in view of the m2,fact that it not only was admitted on behalf of the accused without^
objection at the trial, but was adopted as constituting one of hisj.
lipes of defence. On this point no direct authority was cited to us. ^hTlciSuch cases as R. v. EUis1 and R. v. Fisher* where inadmissible v.PUaevidence had been allowed to pass into a case merely withoutobjection, and probably owing to the fact that it was thought to beadmissible, do not show that an accused person may not deliberatelyacquiesce in evidence, which is only irrelevant, being adducedagainst him, with the intention of utilizing it for the purposes of hisdefence. I have difficulty in seeing that there is anything in theEvidence Ordinance to prevent an accused person from pursuingthis course, or to entitle him, after his defence on the merits hasfailed, to impugn the evidence as inadmissible. No provision ofthe Evidence Ordinance having such an effect was brought to ournotice in argument, and the only one that might possibly be inter-preted in that sense is section 5, which enacts that evidence of factsin issue and of facts declared by the Ordinance to be relevant mayalone be given in any proceeding.
The last and most important point of all is whether the evidenceto which exception is now taken in the present case is not admissibleunder section 9 or section 11 or section 14 of the Evidence Ordinance,whether the accused assents to it or not. Numerous decisions werecited to us by counsel for the accused. But he was obliged to admitthat the point remains uncovered by any direct authority. It hasto be determined on the construction of the provisions of theEvidence Ordinance itself. The Acting Attorney-General contended,and counsel for the accused associated himself with the contention,that section 54 of the Evidence Ordinance makes the fact that anaccused person is of bad character irrelevant for all purposes unlesshe has himself first put his own character in issue. I have gravedifficulty in acceding to that argument. The Evidence Ordinancedistinguishes between facts that are relevant and those that are notrelevant in themselves. It then provides (section 11) that factsin themselves irrelevant may become relevant for certain collateralpurposes—for example, if by themselves they make the existence ornon-existence of any fact in issue or relevant fact highly probableor improbable- (section 11 (2)), or if they show the existence of anystate of mind or of body or of bodily feeling (section 14). Moreover,under section 9, facts which support or rebut an inference suggestedby a fact in issue or a relevant fact are relevant in so far as they arenecessary for that purpose. If these provisions stood alone, therecan, I think, be little doubt but that evidence of the class to whichexception is taken in the present case would be admissible either asrebutting the inference from the relevant fact of Adonissa’s silence(section 9), or as making the existence of his alleged state of fear
1 (2920) 5 Crim. App. Rep. 41.2 (2920) 1 K. ft. 149.
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highly probable (section 11 (2)), or as showing its existence as a fact(section 14). How far are these provisions affected by section 54?
It will be observed that that section does not provide that evidencethat an acoused person is of bad character shall not be given unlessevidence of his good character is first adduced. It merely says thatthe fact that he is of bad character is irrelevant, is a fact, that isto say, which cannot be proved by itself as creating a probabilitythat he committed the offence with which he is charged. Thesection does not say that bad character may not become a relevantfact for one or other of the collateral purposes indicated by sections9, 11, and 14. When the Evidence Ordinance desires to prohibitthe proof of particular facts from being adduced, it does so in expressterms, as, for example, when it deals with confessions made to police .officers (section 25), or by accused persons while in the custody ofthe police, unless in the immediate presence of a Magistrate (section26). Moreover, under section 15, where an accused person is chargedwith the commission of an offence, and questions as to accident orintention arise, it is competent to the prosecution, for the purposeof excluding accident and establishing intention, to show in effectthat he has committed a series of similar offences, even although theadmission of such evidence is in the highest degree suggestive of badcharacter, and in Makin v. The Attorney-General of New South Wales1the Privy Council said that the same principle would hold goodwhere the object of the prosecution was “ to rebut a defence whichwould otherwise be open to the accused.” There are considerations,however, that have to be taken account of on the other side. Theprovisions of section 11 as to the proof of facts, not otherwiserelevant, to make the existence of relevant facts highly probable orimprobable, are so wide that they have to be construed with caution."Explanation 1 to section 14, and the Illustrations to that section,rather indicate that, at least as regards an accused person, thestate of mind referred to must be one existing not generally but inreference to the particular matter in question. No Illustration isgiven, and both sides told us in the argument that they were awareof no decision, from which it could be inferred that evidence of thekind contemplated by the section could be given as showing thestate of mind of a witness. Moreover, under section 9, facts other-wise irrelevant, but becoming relevant for the purpose of rebuttingan inference from a relevant fact, are relevant so far only as theyare necessary for that purpose.
On the whole, I feel that if the evidence here in question had been■ objected to at the trial, and its admissibility had been argued beforeme as fully as it now has been, I should have ruled it out as doubtful.
By virtue of the joint provisions of section 355 (3) of the CriminalProcedure Code, and section 167 of the Evidence Ordinance, theSupreme Court has full power in such a case as the present to consider
1 (1884) A. C. 65.
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the question whether, apart from any evidence of a doubtful or inad-missible character, there is sufficient evidence to justify the verdict.
The corresponding provisions in the Indian Code of Criminal Procedure ftamoir S.(section 434) have been construed in this sense in India (see Prime p’s~~
Criminal Procedure, 14th ed., pp. 524 et seq.). Here, apart from, v.pau?and quite unaffected by, the general reputation of the accused, thereis a body of evidence, both direct and circumstantial, against themthat has to be considered. I feel, however, that as I both was theJudge of trial in this case and have sat as a member of the Courtto which the question of law certified by the Attorney-General hasbeen submitted, it would be right that the accused should have thebenefit of a new trial before a fresh jury, and, of course, another Judge.
I am the more anxious that this should be done, since, although Ido not think that the general evidence of repute adduoed againstthe accused, consisting as it did almost entirely of the statementthat they were people of whom Adonissa and his fellow-villagers wereafraid, could have prejudiced the minds of the jury against them,and although the evidence in question does not touch the credibilityof any .of the witnesses for the prosecution, one statement made bythe Gan-arachchi, Mohotti Banda, goes further than was necessaryfor any of the collateral purposes contemplated by sections 9, 11,and 14 of the Evidence Ordinance. In charging the jury I toldthem that they were not concerned with, and must not consider,the general reputation of the accused, except as evidence of theexistence of the state of fear to which Adonissa attributed his silence.
It is possible, however, that the jury may have been influenced tosome extent both by the general evidence of reputation, and inparticular by the statement of the Gan-arachchi against the accused,in spite of what I said to them on the subject.
I agree to the order proposed by my Lord the Chief Justice.
Pereira J.—
In this case the first question to be considered is whether theAttorney-General has the power to certify to the Supreme Court,under section 355 (3) of the Criminal Procedure Code, that anyparticular question of law ought, to be further considered as aquestion that has arisen at a trial when such question was notactually raised and discussed at the trial.
That section enacts* (omitting immaterial words) that when anyperson has in a trial before a Judge of the Supreme Court beenconvicted of an offence, and the Attorney-General is of opinionthat any question of law arising in such trial ought to be furtherconsidered, he may certify accordingly under his hand, and there-upon the Supreme Court shall have full power and authority toreview the case and finally determine such question, and thereuponto reverse, affirm, or amend the judgment, or make such order asjustice may require. The provisions of section 355 have, in the
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7— main, been taken over from section 434 of the Indian Code of”_L_T ‘ Criminal Procedure, and the words of sub-section (8) of this sectionThe KingaregQadaptation of theterms of section 26 of the Letters Patent
*'*nof1866 constituting theHigh Court of Culcutta. By this section
oftheLetters Patent itwas ordained that " on its being certified
bytheAdvocate-Generalthat in his judgment there is .an error in
the decision of a point or points of law decided by a Court of originalcriminal jurisdiction, or that a point or points of law which has orhave been decided by such a Court should be further considered,the High Court shall have full power and authority to review thecase or such part of it as may be necessary, and finally determinesuch point or points of law, and thereupon to alter the sentencepassed by the,Court of original jurisdiction, and to pass such judg-ment and sentence as to the High Court shall seem meet.’’ It isclear that the powers vested by our Code in the Attorney-Generaland the Supreme Court are very much wider than those vested bythe Letters Patent referred to above in the Advocate-General andthe High Court. The Letters PatenJ speak of a point of law thatapparently has been raised and formallv decided by the Court oforiginal criminal jurisdiction, while section 855 of our Code contem-;plates the case of a question of law arising on a trial. Now, in thecase of every question put to, or answer given by, a witness, aquestion of law arises as to its relevp-iey and admissibility. Noquestion may be actually formulated and raised and submitted tothe Court for decision by counsel on either side, but presumablyevery question arising is for the moment considered by the Courtbefore a witness’s answer is recorded. In that view, it seems to methat the Attorney-General-has the power to certify, as he has donein the present case, a question that has not been actually raisedand debated at the trial.
* The second question arising in these proceedings is as to theadmissibility of certain portions of the evidence given by thewitnesses Adonissa and Mohotti Banda, Gan-arachchi. The formersaid that he did not disclose what he knew at the right time “ throughfear of accused, because they chased him, ” and he added: “ Theaccused are reputed rowdies. ” With reference to this statement, thelatter witness was apparently asked by Crown Counsel to give hisopinion as to the reputation of the accused, and he said: “Thegeneral reputation of the accused is that they were gamblers, drunk-ards, and thieves.’’ Ex facie this is most damaging evidence againstthe accused—evidence in glaring contravention of the provision ofsection 54 of the Evidence Ordinance. It is said that such contra-vention was justified by the provisions of sections 14 and 15 of .theEvidence Ordinance. I do not think so. Under these sections thewitness Adonissa might possibly have gone so far as to say that hewas afraid of the accused because he believed them to be rowdies,but there was no justification for speaking of the reputation of the
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aocused/ As regards the evidence elicited from the Gan-arachchi,there is not a shred of an excuse supportable under any provisionof the Evidence Ordinance. The above statements made by the twowitnesses named do not appear to have been objected to by accused’scounsel, and the explanation given by the counsel who argued thismatter before us is that when a question such as that put to theGan-arachchi is once asked, the mischief is done, and an objectionto the question would rather intensify its effects and make even aworse impression on 'the mind of the jury than an unfavourableanswer. Hence the omission to take the objection. This does notappear to be a very satisfactory excuse, but it may, I think, in thecircumstances of the particular case, be presumed that there wasno intention on the part of the accused to acquiesce in the receptionof the evidence now objected to. However, I desire to say that,in my opinion, a counsel who omits to object to the reception ofevidence which he thinks is inadmissible does so at the risk of hisclient. In my opinion evidence which is accepted with the deliberateand studied, though unexpressed, acquiescence of the accused isevidence against him, although the fact sought to be proved is afact that cannot legally be proved in the case. Of course, whateveris not evidence cannot be made evidence by means of consent oracquiescence of a party to a legal proceeding. Hearsay, for instance,is absolutely inadmissible, but the same cannot be 6aid of evidenceof a fact that under the law is merely irrelevant. Section 5 of theEvidence Ordinance, no doubt, expressly enacts that evidence canbe given of only relevant facts, but for the effect of acquiescence onthe part of the accused we have to look to other provisions. Aconfession by an accused is relevant except in certain circumstanceswhich need not be noticed here, and a full and voluntary confessionin- open Court is evidence of the facts confessed. Confessio injudicio 68t -plena probatio; and if by means of a confession an accusedparty may place before a Court a certain fact, I take it that he mayachieve the same end by acquiescence in the fact being elicited fromthe mouth of a witness.
I think that, for the reasons already given, the conviction andproceedings at the trial of this case should be quashed, and theaccused re-arraigned on the-same indictment.
•
Conviction quashed; re-trial ordered.
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1918.
Pereira J.
The Kin,/«. Pita