059-NLR-NLR-V-47-THE-KING-v.-SUDU-BANDA.pdf
HOWARD CJ.—The King v. Sudtt Banda.
TBS
[Court of Criminal Appeal.]
1846 Present: Howard C.J. (President), Soertsz S.P.J. and de Silva J.THE KING v. SUDU BANDA.
8—M. C. Nuivara Eliya, 9,243.
Evidence—Trial before Supreme Court—Reference to evidence given by witnessbefore Magistrate—Duty of presiding Judge.
The appellant was convicted of the offence of murder.
In re -examination of a witness the prosecution was permitted byCourt to put to the witness, in order to discredit him, certain portionsof the evidence given by him before the Magistrate stating that theaccused had admitted to the witness that he was responsible for thedeath of the deceased. The witness, however, denied that any suchadmission was made by the accused.
Meld, that the Jury should have been specifically directed that whateverthe witness had said to the Magistrate was not substantive evidenceand that the only evidence before them was the testimony given by himat the trial. Even if such direction had been given it could not possiblyeradicate the impression, on the Jury’s mind, of an admission by theaccused.
A PPEAL against a conviction by a Judge and Jury.
Mahesa Ratnam, for the appellant.
D. Jansze, C.C., for the Crown.
Cur. adv. vutt.
March 6, 1946. Howard C.J.—
The appellant appeals against his conviction of the offence of murderon the following grounds :—
(а)That the medical evidence did not establish the fact that the
death of the deceased was caused by an injury inflicted by theappellant.
(б)That in re-examination of the witness Punehirala, Crown Counsel
was permitted to put to this witness certain portions of theevidence he gave before the Magistrate. The purpose of thisre-examination was to prove that the appellant had stated tothe witness that the death of the deceased had happened atthe hands of the appellant. The Jury, in these circumstances,might have come to the conclusion that in fact such an admissionwas made to the witness. Such an admission not having beenproved there was a substantial miscarriage of justice and theconviction could not be maintained.
With regard to (a) the medical evidence was to the effect that therewas an incised wound about 3 inches long and half an inch deep, situatedtransversely on right side of the neck exposing the muscles. In theopinion of the doctor this injury, even without medical treatment, was
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HOWARD C.J.—The King v. Sudu Banda.
not sufficient to cause death. Death was due to cerebral haemorrhagewhich could, in the opinion of the doctor, have been caused by a blowon the head or by a fall. In cross-examination the doctor also saidthat the cerebral haemorrhage might have been caused by high bloodpressure. Having regard to the nebulous character of the medicaltestimony we do not think that it has been proved that the death ofthe deceased was caused by an injury inflicted by the appellant.
With regard to (6) there is no note on the record to indicate that CrownCounsel requested permission and was granted such permission to putthe question of which complaint is made on the ground that Punchiralawas a hostile witness. It must be assumed that permission was grantedon this ground. In these circumstances the only object of puttingthe questions and the only basis on which such questions were permissiblewas to discredit the evidence of Punchirala. The questions could notbe put in order to prove that the appellant had admitted to Punchiralathat he was responsible for the death of the deceased. ’Punchirala haddenied in examination in chief and in cross-examination that any suchadmission was made. When the questions were put in re-examinationafter permission had been given, Punchirala again stated that no suchadmission had been made. Punchirala’s statement to the Magistratewas not proved by the production of his deposition and so his evidencewas not discredited. The Jury, however, may have been left with theimpression that he did tell the Magistrate that the appellant had madesuch an admission. It is true that at p. 12 of the charge the followingpassage occurs :—
“ I may here tell you that you have to find out the facts from whichyou can draw inferences from the evidence placed here before youand not from any statements made before the Magistrate, althoughthose statements may have been referred to in the cross-examinationof the witnesses. I am referring to the statements made before theMagistrate.”
The learned Judge, however, has not specifically directed the mindof the Jury to the questions put by Crown Counsel to Punchirala inre-examination and directed them to the effect that, whatever Punchiralasaid to the Magistrate was not substantive evidence and that the onlyevidence before them was the testimony given by him at the trial. With-out such a direction the Jury may have thought that there was evidenceof such an admission by the appellant. Even if specific reference hadbeen made to these questions, we do not think that any such directioncan possibly eradicate the effect on the Jury's mind. We do not thinkthat we can say that, if the questions had not been put, a reasonable Jurymust have come to the same conclusion. We cannot, therefore, usepowers given to us under the proviso to section 5 (1) of the CriminalAppeal Ordinance. The appeal is allowed and the conviction set aside.
We do not consider that this is a case in which a fresh trial shouldbe ordered.
Appeal allowed.