The King v. Piloria Fernanda.
[Court of Criminal Appear]
1946 Present: Wljeyewardene, J. (President), Cannon and de Silva JJ.THE KING v PILORIS FERNANDO el al.
15-17—M. C. ChUaw, 25,917.
Evidence,—Character of accused—Evidence of previous conviction of accusedvolunteered by prosecution witness in the course of cross-examination—Undefended accused—Duty of Judge—Evidence Ordinance, s. 54—Criminal Procedure Code, s. 230.
Where, in a criminal trial before a Judge and Jury, a prosecutionwitness, while being cross-examined by an undefended accused, volun-teered the evidence that the accused had been previously convicted forperjury—
Held, that the evidence was inadmissible under section 54 of the Evi-dence Ordinance and it was the duty of the trial Judge to have informedthe accused, as he was undefended, that he had the right to apply for afresh trial.
Held, further, that although the Jury had been directed not to acton such evidence there was a manifest irregularity and the trial Judgeshould have discharged .the Jury under section 230 of the CriminalProcedure Code.
PPEAL, with leave obtained, from a conviction by a Judge and Jury.
M.M. Kumarakuktsingham, for the 1st accused, appellant.—Thefirst accused was not represented by Counsel at the trial. In the cross-examination by the 1st accused of the Grown witness Peter the factthat the 1st accused was convicted for perjury was brought out. Thequestion put by the 1st accused was fair and related to relevant matter,
e., impartiality of witness, but the answer given by the witness wasunfair and introduced irrelevant matter, namely, bad character of the1st accused. The presiding Judge did not inform 1st accused of his rightto submit that the trial should not proceed and decided that the trialagainst all the accused should proceed. He warned the July then andlater in the summing-up to disregard that evidence.
[Wuevewakdene J.—An irregularity of this sort only gives theaccused the right to make an application that the trial shall not proceed,but the Judge has a discretion either to allow or refuse the application.Has not the Judge used his discretion in this case ? See Rex v.Featherstone 1.]
As the accused was not informed of his right there is a manifest irre-gularity. A direction to jury not to act on the particular evidence is notadequate in the circumstances of this case—Rex v. Norton, 2.
Further the Judge has decided that the case against all the threeaccused should proceed. The indications are that the Judge has notconsidered in particular the case of the 1st accused.
i 28 Cr. App. R. 176.1 (1910) 2 K. B. 500.
I—*-J. B. A 60876-658 (4/46)
The King v. Piloris Fenian Jo.
In Rex v. Firth 1 the conviction was quashed in the case of an accusedwho was represented by Counsel because a fresh trial was refused onapplication made by Counsel for the accused when evidence of badcharacter was brought out against the accused by his own Counsel.Rex v. Firth has not been overruled by Rex v. Featherstone. In Rex v.Feather stone the appeal was dismissed becauso there was a virtualadmission of guilt by the accused.
The evidence against the accused is slender. If the accused gaveevidence a verdict of acquittal was possible but accused did not giveevidence as his previous conviction for perjury was known to the jury.Thus the accused was substantially prejudiced in his defence andtherefore the proviso to section 5 (1) of the Court of Criminal AppealOrdinance should not be applied in this case.
Further there is a difference between our Court of Criminal AppealOrdinance and the English Act.
Our Ordinance makes provision for a retrial ; the English Act does not.Therefore it is possible for this Court to interfere where the EnglishCourt of Criminal Appeal would not interfere.
This is a case where the proviso to section 5 (2) of the Court ofCriminal Appeal Ordinance should be applied.
Counsel also cited King v. Kotalawala 2.
M.M. Kumarakulasingham (with him P. S. W. Abeyawardene), forthe 2nd and 3rd accused, appellants.
T.S. Fernando, C.C., for the Crown.—Although the appellant shouldhave been informed of his right to apply for a retrial, the Judge had adiscretion to decide whether a retrial should be allowed. In this case itwould appear that the Judge gave his mind to the question of a retrial.This Court should not interfere with the exercise of that discretion unlesssuch exercise was unreasonable.
The witness’s answer disclosed that the appellant had been convictedof perjury. The charges alleged at this trial against the appellant werenot of a cognate nature. In considering whether evidence of bad characterhas prejudiced the appellant, the real question is whether the jury werelikely to believe that on account of such bad character the appellantwas more likely than not to have committed the offences charged againsthim.
[Wijeyewardene J.—But here it is urged that the accused was deterredfrom giving evidence on his own behalf by reason of the disclosure of aconviction for perjury.] The Judge directed the jury immediatelythe evidence was given, and also in the course of his charge, to disregardthat evidence entirely. If the accused gave evidence he could not havebeen cross-examined as to this previous conviction.
The fact that evidence of previous conviction has beon elicited does notnecessarily mean that a conviction should be quashed—See Williams andWoodley 3 and Featherstone’s case referred to. If the jury had been
* 42 A'. L. B. 265.
1 (1338) 26 Cr. App. R. 148.
» 14 Cr. A. R. 135.
WTJEYBWARDEN® J —The King v. Piloris Fernando.
warned to disregard the evidence of character, and no substantial mis-carriage of justice can be said to have occurred, the proviso to seotion5 (1) of the C. C. A. Ordinance should be applied—
Counsel cited Rex v. Lee *, Rex v. Warner 2, Rear v. Charles King 3, Rexv. Kolalawala*.
Cur. adv. wilt.
March 14, 1946. WiJE YE wardens J.—
This appeal comes before us upon an application for leave to appealgranted by this Court.
The three accused-appellants were charged with being membersof an unlawful assembly with some other unidentified persons and withhaving committed various offences of housebreaking, robbery andgrievous hurt. They were convicted on all the counts and were sentencedeach to undergo 3 years’ rigorous imprisonment and to receive 6 strokeswith a rattan.
The first accused was undefended at the trial while the second and thirdaccused were each represented by Counsel.
The main point which had to be considered by the Jury was whetherthe Crown had proved beyond reasonable doubt that the aocused weresome of the perspns who formed the unlawful assembly. The Crownrelied on the evidence of Simon Appuhamy whose home was burgledand Rosalin, a girl of 13 years, employed as a servant by Simon Appuhamy.Rosalin said that the burglars flashed a torch three or four times and sheidentified the first accused by that light. Simon Appuhamy stated thatthere was one flash of the torch and he identified the three accused therebyand mentioned the names of the accused to his neighbour Sediris whosent a messenger Dharmasena to make a complaint to the headman.However, in that complaint 2d1 Dharmasena stated that “ he was nottold who the thieves were ”. Sediris gave evidence explaining that hedid not mention the names of the accused to Dharmasena “ as peoplewho were there (in the burgled house) and the thieves might get informa-tion and they may not be able to be traced ”.
In the course of the trial a Crown witness, one Peter, gave the followingevidence while under cross-examination by the first accused :—
(а)“ the first accused had given evidence against me in a murder
(б)“ the first accused was sent to jail for giving false evidence ”.
There is no doubt that the evidence (a) must have been given in answer
to a question tending to impeach his impartiality. It appears to me,however, that Peter took advantage of the opportunity offered by thatquestion to volunteer the evidence (6) that the first accused had beenconvicted for perjury. That evidence was clearly irrelevant underseotion 54 of the Evidence Ordinance as neither had evidence beenled to prove the good character of the first accused nor was his badcharacter a fact in issue in the case. The record shows that immediatelyafter Peter gave that evidence, the Counsel for the third accused madethe somewhat cryptic statement, “ He may get into the witness box
1 7 Cr. A. R. 6.
* 7 Cr. A. R. 227.
» 20 Cr. A. R. 158.* 42 N. L. R. 265.
WIJEYEWARDENE J.—The. King v. PiJoria Fernando.
and give that same evidenoe ”. Neither the Crown Counsel who appearedbefore us nor the Counsel for the accused-appellants was able to saywhat that statement meant, but it is not possible to dismiss as far fetchedthe suggestion that the Jury might have understood it to mean that ifthe first accused “ got into the witness box ” he would be giving falseevidence on this occasion too.
At this stage the trial Judge addressed the Jury and said :—
“ The first accused in cross-examining this witness elicited somethingprejudicial to him. I must direct you to disregard that and put itaway from your minds and not be influenced in the slightest degree.It has nothing to do with the other accused. I have decided that thecase should go on. I would warn you regarding this at the propertime.”
In his charge to the Jury the Judge said :—
" I told you, and I tell you again, that it is your duty completelyto banish from your minds everything that took place in that connec-tion. It is my clear duty to direct you to disregard it and not let itinfluence your minds. You are not concerned with it.”
No application was made in the trial Court for a fresh trial on behalfof any of the accused.
A witness for the Crown has given evidence of a conviction for perjury.That evidence was in the circumstances of this case irrelevant and inad-missible. It is true that the first accused did not apply to the trial Judgefor a fresh trial. But in the case of an undefended accused it is the dutyof the trial Judge to inform the accused that he has such a right. InFeather atone'a case 1 Caldecote L.C.J. said :—
“ In cases where a prisoner is not defended, and an irregularity ofthis character takes place, it is, in our opinion, the duty of the Judgeto inform the prisoner that he has a right to submit that the trialshould not proceed, and that he should make the application thenand there if he wishes to do so. It by no means follows that in everycase the prisoner would desire to apply for a fresh trial, but, if anapplication is made to that effect, it is the duty of the Judge to decideupon the application according to the circumstances. In this case theappellant was not informed of that right. Whether or not he knewthat he had the right is not possible for us to decide, but the oppor-tunity not having been given to him to apply'’for the Jury to bedischarged, we think that a manifest irregularity took place.”Regarding the note made by the learned Judge it is clear theft thefirst accused was not informed of his right to ask for a fresh trial. Nodoubt the learned Judge has considered whether the case as against thethree accused should proceed and desired that it should proceed as hethought the situation created by the admission of the irrelevant evidencecould be met by a direction to the Jury not to act on such evidence. TheCounsel for the accused contends that the direction is not adequate in thecircumstances and invites our attention to the observation in Rex v.Norton 8 that “ whatever direction be given to the Jury, it is almost
> (1942) 28 Cr. App. R 176.* (1910) 2 King's Bench 500.
Mar Hear'v. Austin de Mel.
impossible for them to dismiss such evidence entirely from their minds.”Dealing with a similar situation Hewart L.C.J. observed in Firth’s case 1
“ It is not very profitable or satisfactory to enter on the sphere ofinquiries with regard to the precise effect which may be producedon the mind of a Juror—and still less on the minds of a collection ofJurors—by a piece of evidence but the principle laid down by theCourt is that, where an irregularity manifestly takes place, then thereought to be an end of the trial in that form. It seems to us in a highdegree dangerous to permit the trial to continue to its end where suchan irregularity has occurred as that which here was inadvertentlypermitted.”
Here there has been a manifest irregularity. Could it be said thatthere has been no substantial miscarriage of justice ? The evidencegiven by Peter that the first accused had been convicted for perjurymight have weighed with the Jury in refusing to act on his defencethat this was “ a false case ” and that he had been “ falsely implicated ”in it.
We are of opinion that the trial Judge should have discharged the Juryunder section 230 of the Criminal Procedure Code.
No doubt, the appeal of the first accused stands on a different footingfrom the appeals of the second and third accused, as (a) the evidence ofPeter was against the character of the first accused alone and (6) thesecond and third accused were represented by Counsel who did not makean application for a fresh trial. But in the special circumstances of thiscase we think we should quash the conviction not only of the first accusedbut of all the accused.
We order a new trial of all the accused in terms of the proviso to section5 (2) of the Court of Criminal Appeal Ordinance, No. 23 of 1938.
New tnel ordered.
THE KING v. PILORIS FERNANDO et al