BASNAYAKE, C.J.—The Queen «. Jamee
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Sansoni, J., and Sinnetamby, J.
THE QUEEN v. A. M. JAMESAppeal No. 144 of 1961 with Application No. 151
S. C. 13jB—M. C. Colombo, 34492jB
Trial before Supreme Court—Discharge of accused before verdict of jury—Trial of
witness on i/fdiclment for giving false evidence—Legality—Procedure for trial
of a witness for perjury—Criminal Procedure Code, s. 439(1) (3).
It is illegal to indict a witness under section 439 of the Criminal ProcedureCode before a trial is concluded by a verdict of the jury.
When subsection (1) of section 439 of the Criminal Procedure Code providesthat “ the accused may be tried by the same jury ” it contemplates that thewitness would be tried then and there by jurors who are still undischarged andin whose minds the evidence in the case would still be fresh. The adjournmentcontemplated in subsection (3) of section 439 cannot extend beyond the end ofthe period of service of the panel.
In the course of a trial before the Supreme Court the jury were dischargedon 22nd May 1961 before the trial was concluded by the verdict of the jury.A month later, the appellant, who was a witness at the abortive trial, wasarraigned and tried before the same jury under section 439 of the Criminal Pro-cedure Code for having given false evidence.
Held, that, inasmuch as tho main case had ended abruptly on 22nd May 1901and not with a verdict of the jury, the Judge had no power to arraign theappellant and bring him to trial under section 439 of the Criminal ProcedureCode for giving false evidonce.
Held further, that the trial of tho witness by the. jury a month after they hadbeen discharged was not warranted by the provisions of Bection 439 of thoCriminal Procedure Code.
Appeal against a conviction of a witness for perjury in a trial beforethe Supreme Court.
Colvin R. de Silva, with Prists Rajasooriya and A. Viknarajah (assigned),for Accused-Appellant.
V. S. A. PuUenayegum, Crown Counsel, for Attorney-General.
Cur. adv. milt.
February 12, 1962. Basnayake, C.J.—
The appellant who was a witness in a criminal trial before the SupremeCourt in which the jury was discharged in the course of the trial was on22nd June 1961 indicted under section 439 of the Criminal ProcedureCode. He was found guilty by a unanimous verdict of the jury apdsentenced to undergo 7 years rigorous imprisonment.
2—R 4800—1,883 (0/02)
BASNAYAKE, C.J.—The Queen v. James
The indictment alleged that the appellant—
(а)when asked in the Supreme Court whether he knew the 1st accused
Kompannage Albert Fonseka stated, “ No, I did not know thefirst accused ”, and when asked whether he knew the 2ndaccused Jassim Zain said, “No”, whereas on 30th June 1960while giving evidence before the Magistrate at the inquiry underChapter XVI of the Criminal Procedure Code he stated, “ Iknow the 1st and 2nd accused. 1st accused is a bus driver andthe 2nd accused was working in the bus line when I was in thebus company. I have known the 1st accused for the last 3 yearsand the 2nd accused for 1£ years as a C. T. B. officer. ”
(б)when asked in the Supreme Court whether he did not go to meet
the 1st accused at Iris house at Narahenpita and whether onthat occasion the 1st accused did not show him an impressionof a key on a piece of soap and whether he did not request him(appellant) to get a key made which was to be used to open asafe in the C. T. B. stated, “It is true I said so in Court but
did not go to meet the 1st accused ”, whereas while givingevidence before the Magistrate at the inquiry under ChapterXVI of the Criminal Procedure Code he said, “ It was about
o’clock in the afternoon the 1st accused told me about thepreparation at Narahenpita at his house. I went there at therequest of the 1st accused. I went and met him. He showedme an impression of a key on a piece of soap and asked me to
get a key made like thatI agreed and questioned
him why he wanted a key made like that. He said that the keywas made to open a safe in the C. T. B. I had sent in anapplication for a job in the C. T. B. The 1st accused agreedto get me a job there. So, I agreed to get a key made. ”
The trial at which the appellant gave the evidence in respect of whichhe was indicted ended abortively on 22nd May 1961. The accused wastried on 22nd June 1961 by the same jurors who were empanelled to trythe accused in the abortive trial.
The first question that arises for consideration is whether it is legal toto indict a witness under section 439 before a trial is concluded by averdict of the jury. In the instant case the jury were discharged in thecourse of the trial before the stage for the return of their verdict hadarrived. The material portion of section 439(1) reads—
“ If in the course of a trial in any District Court or of a trial by jurybefore the Supreme Court any witness shall on any material pointcontradict either expressly or by necessary implication the evidencepreviously given by him at the inquiry before the Magistrate, it shall belawful for the presiding judge, upon the conclusion of such trial, tohave the witness arraigned and tried on an indictment for intentionallygiving false evidence in a stage of a judicial proceeding. In a trialbefore the Supreme Court the indictment shall be prepared and signedby the ^Registrar, and the accused may be tried by the same jury;.”'.' – •
BASNAYAKE, C.J.—The Queen v. James
There is force in the learned counsel’s submission that as the jury hadbeen discharged before they returned their verdict there has been no“ conclusion of the trial Chapter XX which prescribes the procedurefor trials before the Supreme Court has sub-headings such as“Preliminary”, “Commencement of Trial”, “Choosing a Jury”,“ Trial to close of Case for Prosecution and Defence ”, “ Conclusion ofTrial ”, “ Retrial of Accused after discharge of Jury ”, and “ Procedurein Case of Previous Conviction ”. In the scheme of the Code an orderfor the re-trial of the accused after the discharge of the jury is not theconclusion of the trial. The expression “ conclusion of such trial ” isnot a term of art but it means the conclusion or the coming to an end ofa trial by a verdict of conviction or acquittal in accordance with theprocedure prescribed in the sections grouped under the heading “ Con-clusion of Trial In the instant case the trial having ended abruptlyand not with a verdict of the jury, the Judge had no power to arraignthe appellant and bring him to trial. The consequences of arraigning awitness or witnesses under section 439 where a re-trial of the main casehas been ordered can be disastrous to the prosecution where the witness orwitnesses are convicted especially if they are witnesses whose evidenceis material. At the re-trial the prosecution would be forced to rely on theevidence of witnesses who have been proved before that very Court to beunworthy of credit. The course adopted by the learned Commissioner. would render a re-trial almost useless. It is most unlikely that the legis-lature intended that such consequences should flow from the use of thepower conferred by section 439.
The next question is whether there has been a proper trial of the appel-lant. The jurors who heard the main case were discharged on 22nd May1961 ; but they were summoned for 22nd June 1961 and they tried theappellant. Such a course is not warranted by section 439. Whensubsection (1) provides that the accused may be tried by the same juryit contemplates that he would be tried then and there by jurors who arestill undischarged and'in whose minds the evidence in the case wouldstill be fresh. It does not contemplate a case in which the jurors aredischarged and are brought back after a month. Jurors once dischargedare functus and cannot be empanelled again to try a case except after theyhave been summoned in the manner provided in the Criminal ProcedureCode. The adjournment contemplated in subsection (3) of section .439cannot extend beyond the end of the period of service of the panel.When the jui-y are discharged in the main trial, a trial under section 439cannpt legally be held before the same jurors and must necessarily be heldbefore another jury. In a case in which the trial ends by the return of averdict the jury are not discharged until their period of service comes toan end. Even in such a case it is not possible to delay a trial undersection 439 beyond the period left for the jury to serve. In the instantcase at least two panels of jurors must have been summoned between22nd May and 22nd June. The instant case is not a case .of. an
Ismail v. Latijf
adjournment. The trial commenced on 22nd June 1961 with the readingof the indictment and the recording of the accused’s plea, and not on 22ndMay 1961 when the jury were discharged in the abortive trial.
The appellant also complains that his defence has been handicappedby the refusal of his application for a certified copy of the abortive pro-ceedings and the sudden illness of his senior counsel and the refusal oftime to retain other senior counsel. He also urges that in the main trialevidence of his bad character was given before the very jurors who triedhim in this case and that he was thereb}' prejudiced. There is substancein these submissions and they constitute additional reasons why hisconviction should not be permitted to remain.
The appellant’s conviction is vitiated by the illegalities referred toabove. His conviction was therefore quashed at the end of thehearing of this appeal and we directed that a judgment of acquittal beentered.
In view of the conclusion we have reached on the two main points,
. it is not necessary to deal with the other matters raised in the notice ofappeal.
THE QUEEN v. A. M. JAMES