THE KING v. WEGODAPOLA

116-NLR-NLR-V-42-THE-KING-v.-WEGODAPOLA.pdf


1941
The King v. Wegodapola.
459
[Court of Criminal Appeal.]
Present: Howard C.J., Soertsz and de Kretser JJ.
THE KING v. WEGODAPOLA.
63—M. C. Kurunegala. 67,585.
Abduction with intent to force or to seduce to illicit intercourse—Statutorystatement—Wrong inference from statutory statement—Misdirection—Document prejudicial to accused—Statement by Counsel with referenceto document in presence of Jury—Complaint in answer to questionadmitted in corroboration—Court of Criminal Appeal Ordinance, s. 6.The accused was charged under two counts: —
With abducting N in order that she may be forced to illicit inter-
course under section 357 of the Penal Code.
With abducting N in order that she may be seduced to illicit
intercourse under the same section.
He was acquitted on the second count and convicted on the first count.In his statutory statement the accused stated, inter alia, “ We. enjoyedas husband and wife ”.
The statement as regards the girl leaving her home refuted any sugges-tion of force or beguilement on the part of the accused.
The learned Judge in the course of the charge to the Jury on thequestion whether the accused intended to use force for the purpose ofillicit intercourse stated as follows:—
“ He goes further in his statement and says that he had intercourse.So you would not have much difficulty once you find that heabducted her to say that he did so in order that she may beforced to illicit intercourse. ”
Held, that the invitation of the Judge to the Jury to draw such aninference amounted to a misdirection.
460
The King v. Wegodapola
A document showing that the accused had given notice of marriagewith another person at a tune when it was suggested by the defencethat he was. in terms of affection with N is admissible and no inferenceas to the bad character of the accused could be drawn from it.
A complaint made by N which was admitted in corroboration of herevidence under section 157 of the Evidence Ordinance is not inadmissiblemerely because it was made in answer to a question provided the questionwas a natural one under the circumstances and was not of a leading orsuggestive character.
A communication made by Crown Counsel in the presence of the Juryof the existence of a document which was prejudicial to the accusedbut which the Crown was not in a position to produce in due course oflaw is sufficient to invalidate a conviction.
Semble.—It is not competent to the Court of Criminal Appeal tosubstitute a verdict of guilty on count (2), on which the accused wasacquitted, to that returned by the Jury on count Cl).
T
HIS was an appeal from a conviction by a Judge and Jury before theWestern Circuits The facts are stated in the headnote.
H. V. Persia, K.C. (with him G. G. Ponnambalam and S. N. Rajaratnam),for the accused, appellant.—There are 12 grounds of law set out in thepetition of appeal. Grounds (3), (4), (9), and (10) are now abandoned.As to ground (1), the trial Judge allowed the prosecution to lead in evidencedocument X, a notice of marriage alleged to have been given by theaccused in July, 1939. This document was not marked on the back ofthe indictment. It was also indirect evidence of bad character of theaccused.
Ground (2) : The Crown applied for the first time at the trial to lead inevidence certain love letters written by Miss Madahapola, the prosecutrix,to her fiance, Mr. Palipane, at the time of the alleged abduction. Theapplication was made and discussed in the presence of the Jury. It wasrefused, but the discussion that took place must have prejudiced the caseof the accused in the minds of the jurors in view of the fact that thedefence was one of elopement. The proper Course when a point onadmissibility of evidence involving discussion of facts, which may beprejudicial to the accused, is to be argued, is for the Jury to be askedto retire—R. v. Thomson'. The fact that Counsel for the defence didnot raise any objection is not material. The letting in of inadmissibleevidence vitiates a conviction, for the prime consideration is a fair trial—R. v. Gibson ~; Maxwell v. Director of Public Prosecutions –
Ground (5) : The Judge misdirected the Jury when he told them thatno inference of any kind either way could be drawn from the circumstancesthat the Crown did not call the Resthouse Keeper of Habarana, whosename was at the back of the indictment and who was the only independentwitness available to' support the story of Miss Madahapola regarding theincidents at the Resthouse. This misdirection is not covered by theruling in The King v. Chalo Singho'. Under section 114 (/) of the EvidenceOrdinance the Court may presume that evidence which could be and isnot produced would, if produced, be unfavourable to the person who
withholds it.
1 (1917) 2 K. B. C30 ; 12 C. A. It. 2G1 at 269.'
• L. R. IS Q. V. D. 537.
3 (1935) A. C. 309 at 323.* (1941) 42 X. L. R. 269.
The King v. Wegodapola.
461
Ground (6) : The appellant has been convicted on count (1) of the indict-ment of having abducted Miss Madahapola (aged 18) in order that shemay be forced to illicit intercourse. The evidence led for the prosecutiondoes not establish the necessary ingredient namely, that the purpose ofthe alleged abduction was that the prosecutrix might be forced to illicitintercourse. There was nothing beyond mere overtures on the part ofthe appellant. Some act of overcoming resistence is necessary to proveintention of using force.
[Howard C.J.—Cannot the conviction be altered now to one ofabduction in order to seduce ?]
No, the Jury have already acquitted the accused on that count, viz.,count (2) of the indictment.
Ground (7):The statement alleged to have been made by
Miss Madahapola to Mr. Melder is inadmissible in law. It was admitted ascorroboration under section 157 of the Evidence Ordinance. It was madeon the following day about ten hours after the alleged abduction andcannot be said to have been made “ at or about the time when the facttook place ”. See Mohideen v. Johanis Our law is similar to theEnglish law in regard to such complaints (Dona Carlina v. Jayakody')although a different view was taken in Ponnammah v. Seenitamby *. Forthe English law see R. v. Christie '. The statement was made by the girlto Mr. Melder not voluntarily but in answer to certain questions put bythe latter. This circumstance too renders it inadmissible (R. v. OsborneR. v. W. A. Fernando "). Even if the statement was admissible, the Judgewas wrong in not directing that it was not evidence per se of the truth ofthe facts complained of.
Ground (8): The Judge, in his summing-up, referred to the accused as“ contemptible ” and as “ a man of low mentality ” and by using suchexpressions gave the impression to the Jury that the accused was a manof bad character. This was improper (R. v. Counter'').
Grounds (11) and (12): There was serious misdirection when the Judgereferred to the statutory statement of the accused as containing proof ofthe intention of the accused to use force. That statement, when read asa whole, does not warrant any such inference. It has already beensubmitted under ground (6) that the intention is an essential ingredientof the offence. Further, the intention should be present at the verycommencement of the abduction (Upendra Nath Ghase v. Emperor*).
On the evidence, the verdict of the Jury is unreasonable.
[Soertsz J.—In R. v. Andris Silva et al. *, cases were considered inwhich this Court would interfere on the ground that a verdict isunreasonable, but the present one does not seem to be such a case.]
Section 5 (1) of the Court of Criminal Appeal Ordinance expresslyprovides that an appeal may be allowed when the verdict is unreasonable.Moreover, in this case the summing-up of the trial Judge was in favourof an acquittal.
’ (1015)1 C. T! B.70.3(190S) 1 K. B. 551.
= (1931)33 X. L. B.105.*(1940) 19 C. L. It'. 21.
■ (1921)22 X. L. B.395.‘7 23 C. A. B. 22.
« (1914).4. C. 545.*A. I. B. 1940 Cal. 561.
» (1940) 41 X. L. B. 433.
42/34
462
The King v. Wegodapola.
[Howard C.J.—Why then was no application made for a certificate ?]
It would appear that a certificate is granted ex mero motu.
[Howard C.J.—There is nothing to prevent the defending Counselfrom making an application.]
The observations of the presiding Judge may be taken into considerationin appeal—R. v. Willie Hart'.
E. H. T. Gunasekera, C.C. (with him G. E. Chitty, C.C.), for the Crown.—To deal with the points in the order already adopted, firstly, the notice ofmarriage was produced in answer to a suggestion made by the defence.
[The Court did not wish to hear Counsel further on this point.]
Ground (2): There is a risk of prejudice involved alike in a suggestionthat the Jury should retire and in an argument in the presence of the Jury.It is for the defence to choose which risk they will take, and the making ofany suggestion by the Judge or the prosecution may well be open toobjection. What was held in R. v. Thomson (supra) was that, when i: isdecided that an argument should be heard in the absence of the Jury, 'theargument should be heard in open Court and not in chambers. A casemore in point is R. v. Anderson°. The order on the application, deliveredis the hearing of the Jury, contained a sufficient warning to the Jury toignore the reference to the letters.
Ground (5) : The comments of the Judge regarding the failure to call theResthouse Keeper can be justified by the ruling in R. v. Chalo Singho(supra).
Ground (6): If the Jury were satisfied that the girl was abducted, therewas sufficient evidence that the accused’s intention was to force her toillicit intercourse. The intention suggested by the fact of abductionand the circumstances that the accused was a young man, that the girlwas of marriageable age, and that he kept her for a night in a distantresthouse where he occupied the same room with her, is an intention toforce or seduce her to illicit intercourse. See Mohamed Sadiq v. Emperor The girl’s evidence that he threatened to shoot Palipana if she did notyield herself to him is evidence that his intention was to force her tointercourse. If the accused had any different intention the burden wason him to prove it : Evid. Ord. s. 106 and illustration (a). He did not giveevidence.
Ground (7):The statement of the girl to Melder was admissible as
corroborative evidence under section 157 of the Evidence Ordinance andalso to prove the consistency of the story of the girl. It was made “ at orabout the time ” because the abduction can be said to have terminatedonly when the girl left the accused’s car and spoke to Mr. Melder.
With reference to the objection that the statement was made in replyto questions, R. v. Osborne4 was considered later in -R. v. RichardNorcott °. The questions were not of a leading, inducing or intimidatingcharacter. Even if they were leading questions, section 157 of ourEvidence Ordinance is wide enough to make the answers admissible.
Ground (8): The expressions “ contemptible ”, &c., were used by theJudge in relation only to the conduct of the accused in this particular caseand were not allusions to general bad character.
1 10 C. A. R. 170 at ITS.'5 (193S) A.I.R. Lahore 474.
*2t C. A. R. 17S.* (1905) 1 K. B. 551.
512 C. A. R. 106.
ms
HOWARD C.J.—The King v. Wegodapola.
Grounds (11) and (12) : It is possible to justify the direction of the Judgethat intention to force to illicit intercourse can be inferred from thestatutory statement erf the accused alleging actual intercourse, when thatstatement is considered in conjunction with the evidence of the girl.Even if it was a misdirection, it was innocuous, because once the Juryfound abduction they could not reasonably acquit the accused of bothabduction with intent to force to illicit intercourse and of abductionwith intent to seduce to illicit intercourse. The question then would benot whether the accused had a criminal intention but which of twoequally criminal intentions, and our law permits a conviction in thealternative: Criminal Procedure Code, section 307, Penal Code, section 67a.The Judge directed the Jury on the footing that counts (1) and (2) werein the alternative. If the alleged misdirection has' resulted in a wrongconviction under count (1), the right verdict was not an acquittal on bothcounts but a conviction on count (2) or a conviction in the alternative.In any event, upon a proper direction there would have been a convictionof an offence punishable under section 357 of the Penal Code. There istherefore no miscarriage of justice.
[Howard C.J.—Is it open to this Court to alter the conviction to oneof abduction in order to seduce, notwithstanding the acquittal on thatcount ?]
Yes, section 6 of the Court of Criminal Appeal Ordinance wouldpermit it.
The verdict of the jury is not unreasonable._
H. V. Perera, K.C., in reply.—Section 106 of the Evidence Ordinancedoes not alter the burden of proof as regards intention. From the factof abduction alone the necessary intention cannot be inferred.
The conviction cannot be altered now to one of abduction with intent toseduce. The words “ some other offence ” in section 6 of the Court ofCriminal Appeal Ordinance cannot include an offence regarding whichthere is already a verdict of acquittal.
'Cur. adv. vult.
July 31, 1941. Howard C.J.—
In this case the appellant was convicted of abductiing one NandawathieMadahapola in order that she may be forced to illicit intercourse incontravention of the provisions of section 357 of the Penal Code andsentenced to rigorous imprisonment for a term of three years. Mr. Pereraon his behalf has submitted that on various grounds of law the convictionshould be set aside and has also contended that on the facts the verdict isunreasonable and cannot be supported by the evidence.
In the notice of appeal the appellant has based his -appeal on twelvegrounds of law. Of these grounds (3), (4), (9) and (10) were abandonedin this Court by Mr. Perera. We are of opinion that there is no substancein grounds (1), (5) and (8). With regard to ground (1) Mr. Perera con-tended that the notice of marriage, the document marked “ X ”, shouldnot have been admitted in evidence as it was not on the back of theindictment. Moreover, inasmuch as it was indirect evidence of the .badcharacter of the appellant, the latter was prejudiced by its admission.The document showed that the appellant had given notice of marriage in
464
HOWARD C-J.—The King v. Wegodapola.
July, 1939, at a time when it was suggested by the defence that he was onterms of affection with Nanda. It was, therefore, admissible in evidenceto rebut the suggestion that at this time their relations were of an affec-tionate character. Nor do we think that an inference as to the appellant’scharacter can be deduced from this document. Ground (5) complainsthat the learned Judge misdirected the Jury when he told them that noinference of any kind either way could be drawn from the circumstancethat the Crown did not call the Resthouse Keeper of Habarana whosename was on the back of the indictment as a witness. In the recent caseof R. v. Chalot Singho', this Court in a judgment delivered by Soertsz J.,in which all the authorities were reviewed, held that there is no non-direction by the Judge when he omits to refer to the presumption undersection 114 (f) of the Evidence Ordinance in cases in which the Crowndoes not call or tender for cross-examination, on the request of theprisoner’s pleader, a witness whom the prisoner’s pleader had himself anopportunity of calling. Mr. Perera accepts the authority of this case,but maintains that the learned Judge’s direction would not have beenopen to question if he had merely refrained from commenting on thefailure of the prosecution to call the Resthouse Keeper. The matter ofdrawing an inference one way or the other should have been left to theJury. We do not consider there was any misdirection. It was open toeither side to call the Resthouse. Keeper and in these circumstances theJudge’s comment was justified. With regard to ground (8), we are ofopinion that the expressions used by the learned Judge in his charge to theJury had reference to the appellant’s behaviour in this particular affairand could not be regarded by the Jury as stigmatising him as a man ofbad character.
The remaining grounds of appeal have required and received our mostcareful consideration. Grounds (6), (11) and (12) may be consideredtogether. Mr. Perera makes two points. He first of all contends thatthere was no evidence that the appellant had any intention to use force,an ingredient of the offence of which he was found guilty. In thisconnection it has been maintained that it must be established that forcewas intended at the time of the abduction. Abduction, however, is acontinuing offence, and an intention to use force to accomplish his purposecould be inferred by the Jury if they believed the story of the girl that theappellant said he would shoot Ivor Palipane if she did not allow him tohave her and that he only desisted in his attempts when she threatened toshout and scream if he did not leave her alone. In the case of MohamedSadiq v. Emperor2, it was held that the natural presumption when ayoung man abducts a girl of marriageable age is that he abducted herwith intention of having sexual intercourse with her either forcibly orwith her consent after seduction or after marrying her. If any otherintention is alleged to exist, the burden is on accused to prove it. Wethink, therefore that there was evidence on which a Jury could find anintention to use force.
Mr. Perera also contends that there was a misdirection by the learnedJudge in the reference in the charge to the statutory statement made by
1 42 N. L. R. 269.
* (193S) A. I. R. Lahore 474.
HOWARD C.J.—The King v. Wegodapola.465
the appellant. The passage to which objection is taken is worded asfollows : —
“ Now, if you hold that he did abduct, you will have to find whetherhe did that with this intention—in order that she may be forced toillicit intercourse. I do not think there will be much difficulty withregard to this. Then what is the position ? He abducted her, hetook her, got her into the room and admittedly, according to his ownstatement, he not only made the attempt, but he succeeded in theattempt. The girl herself says that he did attempt to have intercourse.He came and disturbed her clothes. He goes further in this statementand says that he had intercourse. So, you would not have muchdifficulty once you find that he abducted her to say that he did so inorder that she may be forced to illicit intercourse. It is for you toform an opinion. I am just telling you. Well, if you come to thatconclusion then he is guilty on the first charge. It may be that he didnot intend forcing her, but intended only to persuade her to illicitintercourse by quiet means. Having abducted her, he thought, if Iplace her in a room and create a situation which would be favourableto my having my own way with the girl she would be agreeable. Ifyou think he did not intend to force sexual intercourse, but intended toforce her to a situation where he would know her carnally, then, that isseduction. It is a case either of intending to force her to illicit inter-course or a way to seducing her to intercourse. If you find that hehad abducted her, then consider the other circumstances with regard tothe intercourse and see whether you will find him guilty of counts (1)or ’(2). Then coming to count (3) again if you find that he hadabducted her then you got his own statement that he went and hadintercourse with her.”
Mr. Perera contends this passage suggests to the Jury that if they aresatisfied that the appellant abducted the girl, they can infer from hisstatutory statement first of all that he intended to force her to illicitintercourse or in the alternative an intention to seduce her to illicitinercourse. Mr. Perera further maintains that such an intention cannotbe inferred from the statutory statement of the appellant which refutesthe suggestion of abduction and must be considered as a whole.Mr. Perera admits that the direction would be less objectionable if thelearned Judge had invited the Jury to infer from the statement of theappellant an intention merely to seduce. As the Jury have found theappellant not guilty on the second count, he contends that this Court hasno power to substitute a conviction on this count even if it consideredthat the evidence warranted such a conviction. The Jury was invited bythe learned Judge to make the inference to which exception is taken byreason of the fact that the appellant in his statutory statement said: “ Weenjoyed as husband and wife ”. Twice in his charge the learned Judgestates that if the appellant abducted the girl, the Jury would not havemuch difficulty in finding that he did so in order that she may be forcedto illicit intercourse. In the first reference this absence of difficulty isbecause as stated by the learned Judge—
“ according to his own statement, he not only made the attempt, buthe succeeded in the attempt.”
4C6HOWARD C.J.—The King v. Wegodapola.
The Jury would from this passage infer that the portion of the statementof the appellant admitting having sexual intercourse that night indicatedan intention on the part of the appellant to overcome any resistance ofthe girl to such intercourse. The second reference to the absence ofdifficulty is put by the learned Judge as follows: —
“He goes further in this statement and says that he had intercourse.So you would not have much difficulty once you find that he abductedher to say that he did so in order that she may be forced to illicitintercourse.”
Once again from the admission by the appellant that intercourse tookplace the Jury are invited to find that there was an intention to force toillicit intercourse. I do not consider that such an intention can beinferred. It is true that immediately after the passage to which objectionis taken the learned Judge tells the Jury that it is for them to form anopinion and also that, if they think he did not intend to force sexualintercourse, but only to place her in a situation when he would know hercarnally, it would only be seduction and therefore he would be guiltyonly under count (2.) The majority of the Court are of opinion that inspite of the matter being left to the Jury the invitation by the learnedJudge to draw the inference I have mentioned amounted to misdirection.They are also of opinion that any inference to be invited from the statutorystatement of the appellant should regard that statement in its entiretyand not merely as an isolated passage. In this connection it has to beborne in mind that the statement as a whole in regard to the girl leavingher home refutes any suggestion of force or beguilement. For reasonsgiven later in the judgment it is unnecessary to consider whether averdict of guilty on count (2) could be substituted by this Court for thatreturned by the Jury on count (1). The case of R. v. Florence Fisher1,seems to-indicate that we cannot adopt such procedure.
Ground (2) alleged that during the course of the trial the Crown appliedto ?-roduce in evidence certain love letters written by the girl Nanda tober; fiance, Palipane, on or about December, 1939, and January, 1940.The application to produce these letters which was refused by the learnedJudge after argument on both sides took place in the presence and hearingof the Jury. It was submitted that the appellant could not have failedto have been prejudiced by this argument. Crown Counsel in makingthe application stated that the Crown wished to put in evidence certainletters written by the girl during her engagement to Mr. Palipane to showthe nature of their relationship. The application followed on a statementby the girl in evidence that she was fond of Palipane. The letters, ifadmitted in evidence, would rebut the defence of the appellant that heand the girl were on terms of such" affection that they were contemplatingelopement. Crown Counsel also stated that the purpose of putting inthe letters was to rebut the case for the defence that the girl was unhappyabout her engagement to Palipane. The learned Judge in refusing theapplication of Crown Counsel said that the admission of the letterswould work serious prejudice to the appellant if they were admitted atthat stage. We regard it as most unfortunate that the Jury should haveheard the argument on this matter and have become aware of the
1 1G C.A.R. 33
HOWARD C.J.—The King v. Wegodapola.
467
existence of such letters. Neither Counsel suggested that the Jury shouldretire while the argument took place. The question of the retirement ofthe Jury during an argument as to the admissibility of evidence wasconsidered by the Court of Criminal Appeal in England in the case ofR. v. Thomson1. In the course of his judgment Lord Reading C.J. laiddown the following principle:—
“ No objection was taken on this appeal to the procedure adopted,but in order to prevent any misapprehension as to this Court’s view ofthe proper course to pursue in such circumstances, we are of opinionthat whenever the Judge in his discretion thinks it will unfairly pre-judice the defence if the argument should be heard in the presence ofthe Jury, he should direct the Jury to retire to their room, and he shouldhear the argument in open Court so that it may appear on the shorthandnote. This course should only be adopted when the Judge in theexercise of his discretion thinks that the defence would be unfairlyprejudiced, and the question cannot be argued in the abstract, as itfrequently may be, when the evidence objected.to appears on thedepositions.”
The question of the retirement of the Jury was also considered in R. v.Anderson.' In that case it was held that the Judge is not entitled toorder the Jury to withdraw in order to hear statements in their absencewithout the consent of the defence. It was also held that Counsel mustnot convey to the Jury by suggestion or otherwise that there is in existencea document prejudicial to the defence, unless he is in a position to producethat document in due course of law : such a communication is sufficient toinvalidate a conviction. We are of opinion that in this case the existenceof a document prejudicial to the defence and which the Crown Was not in aposition to produce was brought to the notice of the Jury. Suchprocedure could not have failed to prejudice the defence.
Ground (7) complained that the girl’s statement to Mr. Melder wasinadmissible in evidence, and if admissible, the learned Judge should havewarned the Jury that it did not amount to corroboration of her evidencein .Court. The statement was admitted as corroboration of the girl’sevidence under section 157 of the Evidence Ordinance. Mr. Pereracontended that it would not be evidence under the provision of the law asit was not made “ at or about the time when the fact took place ” and wasmoreover made in answer to questions. He also took the objection thatparts of the statement made by the girl to Mr. Melder did not come withinthe ambit of the words “relating to the same fact”. We are of opinionthat the statement was made “ at or about the time when the fact tookplace ”. The fact must be taken to be the act of abduction. Abductionbeing a continuing offence the girl made the statement at the earliestopportunity to a person to whom it would be natural to make a complaint.With regard to the objection that the statement was elicited in reply toquestions, Mr. Perera referred us to the case of R. v._ Osborne 1 where thefollowing passage occurs in the judgment of the Court of Criminal Appealdelivered by Ridley J.:—
“ It appears to us that the mere fact that the statement is made inanswer to a question in such cases is not of itself sufficient to make it1 (1917) 2 K. B. C30.* 21 C. A. R. ITS.3 (1905) 1 K. B. 551.
463
HOWARD C.J.—The King v. Wegodapola.
inadmissible as a complaint. Questions of a suggestive or leadingcharacter will, indeed, have that effect, and will render it inadmissible,but a question such as this, put by the mother or other person, “ Whatis the matter ? ” or “ Why are you crying ? ” will not do so. These arenatural questions which a person in charge will be likely to put; on theother hand, if she were asked, “ Did so-and-so ” (naming the prisoner)
“ assault you ? ” “ Did he do this and that to you ? ” then the resultwould be different, and the statement ought to be rejected. In eachcase the decision on the character of the question put, as well as othercircumstances, such as the relationship of the questioner to thecomplainant, must be left to the discretion of the presiding Judge.If the circumstances indicate that but for the questioning thereprobably would have been no voluntary complaint, the answer isinadmissible. If the question merely anticipates a statement whichthe complainant was about to make, it is not rendered inadmissible bythe fact that the questioner happens to speak first. In this particularcase, we think that the Chairman of Quarter Sessions acted rightly,and that the putting of this particular question did not renderthe statement inadmissible.”
It appears to us that some of the replies given by the girl to questions putby Mr. Melder are objectionable having regard to the principles laid downin R. v. Osborne {supra), an authority accepted by this Court in R.v. Waduge Arthur Fernando'. Mr. Gunasekera on behalf of the Crownmeets the objections taken to the admission of this evidence by a referenceto the record of the trial which indicates that the fact of a statementbeing made by the girl to Mr. Melder was first elicited in reply to aquestion put by the defence. We. do not consider that the puttingof this question justified the admission of the questions and repliesthat offended against the rule laid down in R. v. Osborne. Wedo not consider that there is much point in Mr. Perera’s complaintthat the learned Judge failed to direct the Jury that the statementof the girl to Mr. Melder did not corroborate her evidence. In thisconnection it must be borne in mind that the statements were put in undersection 157 of the Evidence Ordinance with a view to “ corroborating ”the testimony of the girl. It might perhaps have been of assistanceto the Jury if the learned Judge had directed them that the statement toMr. Melder was not fresh evidence of an independent character, butmerely went to strengthen the girl’s evidence in view of the fact thatconsistency is a ground for belief in a witness’ veracity.
There now remains for consideration the further question as to whetherthe verdict of the Jury must have been the same if the irregularities towhich I have referred had not taken place. The majority of the Courtare not able to say that it would. In these circumstances the interests ofjustice require that the appeal should be allowed and the conviction ofthe appellant quashed.
The appellant had also applied for leave to appeal on the facts, on theground that the verdict of the Jury is unreasonable and cannot besupported by the evidence. In view of the decision of the majority of the
119 C. L. IF. 21.
HOWARD C.J.— The King v. Wegodapola.
469
Court on the submission of Counsel for the appellant on grounds of law,it is unnecessary to arrive at a conclusion on this point. It has, however,been laid down on numerous occasions by this Court, following thepractice of the Court of Criminal Appeal in England, that we do not sit asa Jury and will not interfere with the findings of a Jury on a question offact unless the verdict is unreasonable or unsupportable on the evidenceor a manifest injustice has occurred. We think it very doubtful whetherthis case is one that can be brought within the category of cases where theCourt of Criminal Appeal in England has set aside the verdict of the Juryon a question of fact.
We have given careful consideration to the question as to whether inthe circumstances of the case a new trial should be directed. In thisconnection we have attached considerable weight to the opinion of theJudge as reflected in his charge. The majority of the Court are of opinionthat a new trial would not serve the interests of justice.
In conclusion there is one other matter on which the Court in theinterests of the proper administration of justice is impelled to comment.The record of evidence in the case is out of all proportion to the facts inissue. This is due to the inordinate length of the cross-examination.Counsel for the accused have thought fit to cross-examine the Crownwitnesses on matters not even remotely relevant to any point in issue.There is tedious iteration in some of the questions asked, and prolongedemphasis is laid on some, matters, trivial in relation to the main issues.Such procedure can only have the effect of distracting the attention of theJury from the real issues on which their minds should be focussed. Theresultant confusion does not make for the due administration of justice.In fact a criminal trial in such circumstances becomes a travesty ofjustice. Moreover a protracted and irrelevant cross-examination notonly adds to the cost of litigation, but is a waste of public time. Nodoubt advocates who cross-examine at such inordinate length do so underthe impression that they are serving the best interests of their clients.This is a fallacy and only serves to bring home the fact that they areunfamiliar with the art of cross-examination as formulated by distin-guished lawyers. Advocates often forget that cross-examination, thougha powerful engine, is likewise an extremely dangerous one, very apt torecoil even on those who know how to use it. In this connection I cannotdo better than suggest that Advocates interested in the due administrationof justice, and who are at the same time anxious to put before the Jury thecase of their client in the most favourable light should scrutinize and taketo heart the rules for examination of witnesses in Part 2 of Book IV.of Best on Evidence. I would also invite attention to the judgment ofTord Sankey in Mechanical and General Inventions Co. and Lehwess v.Austin and the Austin Motor Co.1
Conviction set aside.
* (1935) A. C. ntp. 359.