004-NLR-NLR-V-02-THE-QUEEN-v.-APPUWA.pdf
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IBM.
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THE QUEEN v. APPUWA.D. 0., Kandy (Criminal),^,
Indictment—Intentionally giving false evidence—Record of judicial pro-ceeding—Presumptions’on production of it—Evidence—The CeylonEvidence Ordinance, et. 80,114.
An indictment oharging the aooused with intentionally givingfalse evidenoe in the course of a judioial proceeding* stated thealleged false evidenoe to be as follows :—" I never sold an undivided" half share of this land. I have never been to the notary’s office“ to exeoute a deed in the defendant’s' favour. I did not obtain“ from the notary a certified copy of deed in favour of myself and“ plaintiff," &o.—-
Held, that it must appear in the indictment by proper innuendoswhat was meant by the expressions " this land," “ the notary’soffioe;" " the notary," &o.
Sections 80 and 114 of " The Ceylon Evidence Ordinance, 1806,"render it unnecessary that in a prosecution for intentionally givingfalse evidenoe in the oouree of a. judioial proceeding, the ohief darkof the Court in which the judioial proceeding was had should becalled to produoe and verify the record, or the interpreter to provethat there was a judicial proceeding, and that the oath or affirmationwas duly administered, and that the Court took down what thewitnesses actually said, and. the interpreter oorreotly interpretedthe evidenoe. These faots are to be presumed on the production ofthereoord. .,,, '
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HE faots of the oase sufficiently appear in the judgment. Itwas argued on 12th May, 1398.
Dornhoret, for appellant.
Cooke, C.C., for respondent.
Our. adv. wit.
82nd May, 1300. Bohsbb, C.J.—
The appellant was oonvioted In the District Court of Kandy ofintentionally giving false evidenoe in a judioial proceeding on twooccasions, the 5th February, 1304, and 10th Ootober, 1894.
The indiotment was as follows :—
-…. The oharges against the aooused are—(1) That he on orabout the 5th day of February, 1804, at Gampola, within the juris-diction of this Court, being legally bound by affirmation te statethe truth while giving evidenoe in a judioial proceeding, to wit,case No. 1,280, before the Court of Requests of Gampola, didintentionally state as follows:—“ I never sold an undivided half" share of this land. I cannot write. I never signed any .deed of" transfer. I have never been to the notary’s offioe to eseout®," a deed in defendant’s favour. I did not obtain from the notary" a certified oopy of deed in favour of myself and. plaintiff,’’
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whioh said statements were false in foot, and the said Pihilagedara* 1890.Appnwa (the accused) knew them to be false when he gave the MqyfS
afore&id evidence,and that he has thereby committed the offence of '
intentionally giving false evidence, punishable under seotion 180 of .Banana, OJtiie Ceylon Penal Code.
(2) That he on or about the 10th day of October, 1894, at Gam-pda, being legally bound by affirmation to state the truth whilegiving evidence in a judioial proceeding, to wit, case No. 1,286,before the Court of Bequests of Gampola, did intentionally stateas follows:—“ I never executed a deed of transfer, nor signed any“ document in his favour. I know Kaluwa, but not Menikrala. I“ never asked them to attest my signature to any deed. I never" wrote nor signed this deed.” Whioh said statements were falsein foot, and the said aooused knew them to be false when he gave. the aforesaid evidenoe, and that he has thereby committed theoffenpe of intentionally giving false evidenoe, punishable underseotion 190 of the Ceylon Penal Code.
In my opinion this indiotment was not sufficiently precise. Itought to have appeared in the indiotment by proper innuendos^what was meant by the expressions “this land,” “the notary’s -office,” “ the notary,” “ {his deed,” &o.
But no objection was taken at the time to the indiotment, andseotion 209 °* Criminal Procedure Code applies.
At the same time, greater oare should be taken in the preparationof oharges, for looseness in stating an offenoe is not infrequentlyfollowed by looseness in proof. The alleged perjury was committedin the oourse of two trials of the same action in the Court of Bequestsat Gampola: the first having taken place before Mr. Lee, who wapthen the Commissioner or acting as the Commissioner of that Court,and the second before Mr. Kindersley, who was then acting in thesame capacity.
The proof that the words alleged to be false were uttered bythe appellant consisted of the production of the record of the caseby the chief clerk of the Court, and the evidenoe of one De Zilva,
-the interpreter of that Court, who deposed to having acted asinterpreter on these two occasions, and to having administered theaffirmation to the appellant':
The interpreter was unable to swear that the appellant used,tiie words alleged in the indiotment, but referred to the evidenoeas recorded respectively by Mr. Lee and by Mr. Kindersley.
It was contended for the appellant that thiB evidenoe wasinsufficient; that the Commissioners ought to have-been called,who could have refreshed their memory from the notes of
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1886.
Mag It andS2.
ftoNBKK, C.J.
evidence taken by them, or that some one should have beeh calledwho was present and who could pledge his recollection to the actualwords used.*
In my opinion this contention is correct according to Englishlaw and practice, but we have.to decide this case according tothe law of this Island.
No doubt De Zilva’s evidence was insufficient both by Englishlaw and the law of this Island. He professed to speak of that ofwhich he had no recollection, refreshing his memory by the notesmade by the Commissioners, but he did not read over the evidenceafter it had been recorded by the Commissioners, nor was he able tosay that he was sure that the evidence was correctly recorded by theCommissioners, so that he was not justified in using these notes torefresh his memory (see sections 159 and 160 of the EvidenceOrdinance, 1895). But these notes were recorded by the Commis-sioners in the discharge of their official duty (see section 169 of the •Criminal Procedure Code). In this they differ from the case of notestaken by a County Court Judge in England or by a Judge of Assize.In neither of the latter cases is there a legal obligation to take suchnotes, and therefore it has been .held that the notes themselves arenot evidence, even though proved to have been taken by the Judgehimself (see R. v. Child, 5 Cox Crim. Cases, 197), Where Talfourd, J.,held, “ a Judge’s notes stood in no other position than anybody“ else’s notes. They could only be used in evidence to refresh +he
memory of the party taking themThey were altogether
“ inadmissible.” But section 80 of our Evidence Ordinanceexpressly applies. The Court is bound, until the contrary be proved,to presume that the record of the evidence taken, purporting to besigned, as it was in this case, by the Commissioners, was genuine,and that the evidence was duly taken. This in my opinion renderedit unnecessary for the chief clerk to attend to produce and verify the■ record, for it proves itself. It was unnecessary for the interpreter toattend to prove that there was a judicial proceeding, and that theoath or affirmation was duly administered, or that the Commissionerstook down what the witnesses actually said, for these facts beingstated on the record will be presumed. Nor was it necessary forthe interpreter to prove that he correctly interpreted the evidence ;the Court may presume this (section 114 of the Evidence Ordinance,1895). It will of course be open to a defendant to displace all thesepresumptions by evidence.
In my opinion the Commissioners’ record of the evidence wasnot only admissible as proof of what the appellant said, but
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the only admissible proof. For these reasons I think that the 1886s, -objectibn in law to this conviction fails.MaylZ and
It was further argued that the weight of evidence, was againsttile conviction. Ab to this I can only say that I am not satisfied Bonotb, O.J.that the District Judge was in error in finding the appellant guilty ofthese offences.
I.AWMI5, J.—I agree.