061-NLR-NLR-V-57-THE-QUEEN-v.-B.-M.-HETHUHAMY-et-al.pdf
[In* the Court of Criminal Appeal]
1955 Present: Gratiaen, J. (President), Weerasoorlya, J., and Fernando, J.THE QUEEN v. B. M. HETHUHAMY el al.
Appeal No. 77, with Applications 121-123, of 1955S. C. 9—M. C. Kurunegala Xo. 9/10229
Evidence—Il'tVnm—Conflict between evidence on oath and an earlier statement—Verdict should then be found on the rest of the evidence—Summing-up—.1/ is -direction—Power of Judge to interrogate witnesses.
(i) If the evidence of a witness on nny particular issue is demonstrably un-reliable owing to somo proved or distinctly admitted inconsistency on a materialpoint, his cvidcnco is worthless and cannot properly be taken into accountat all for the purpose of deciding that issue. It is illogical to conclude in addition(1) that, because his evidence cannot bo acted upon, the opposite of what hosaid represented the truth, and (d) that as the opposite of what he said at thetrial happens to coincide with the version given by another witness, the veracityof that other witness is thereby confirmed,
(it) Although o presiding Judge is entitled to interrogate a witness for thoprosecution, it is generally far moro satisfactory to leave the conduct of thecase on nny vital point of controversy in the hands of tho prosecuting Counsel,who must make his own decision whether or not to apply to the Judge for per-mission to cross-examine ns an adverse witness a man whom lie has advisedlycalled.
■^^iPPEAL, with applications for leave to appeal, against certainconvictions in a trial before the Supreme Court.
E. Chilly, with Malcolm Pcrera, for the 1st accused-appellant.
M. D. Jesuralnam, for the 2nd accused-ajjpellant.
V. S. A. Pullenaycgum, Crown Counsel, for the Crown.
Cur. aclv. rail.
October 6, 1955. Gratiaen, J.—
The appellants, three in number, were convicted at the Kurunegala.Assizes of the following offences alleged to have been committed by themin the village of Galwewa on the night of 14th June, 1954 :
being, together with three others unknown to the prosecution,
members of an unlawful assembly the common object of whichwas to commit robbery of cash and jewellery belonging toyf. 3D. Charles Appuhamy, and also to cause hurt to him ;
rioting ;
robbery of cash and jewellery belonging to the said Charles Appu-
hamy in prosecution of their common object;
causing simple hurt to the said Charles Appuhamy in prosecution
of their common object._
These offences had unquestionably been committed by five or more personssome at least of whom Charles Appuhamy had been unable to identify.
The only disputed issue at the trial was whether the purported idcnt-ification of all or any of the appellants by Charles Appuhamy had been estab-lished beyond reasonable doubt. At the conclusion of the argument wequashed the convictions and stated that the grounds of our decision wouldbe pronounced later.'
Charles Appuhamy owned a tea boutique in which he resided aloneexcept for his infant child, his wife having previously deserted him. Atabout 7.30 p.m. on the day in question the front portion of the boutiquehad been closed, and he was about to put the child to sleep when sixpersons entered the boutique through the back door which was still open :they seized him and tied him up with a rope and one of them stabbed himonce, but not seriously, on the fleshy part of each leg ; having proceededto remove all his money and jewellery from a cupboard in an adjoiningroom, the intruders left the boutique with the loot. Shortly afterwards,Charles Appuhamy released himself and, with his child in his arms, herushed out of the boutique appealing for help. Several neighboursincluding the prosecution witnesses Ukku Banda and Mudalihamy arrivedon the scene. Mudalihamy went almost immediately to report the inci-dent to the Village Headman of Dorabawila -who lived some distanceawaj'. The Headman reached the scene of the burglary at about10.45 p.m. and, on being questioned, Charles Appuhamy named theappellants as three of the persons who invaded his home : he added thathe had failed to identify the other members of the unlawful assembly.
ISTo part of the stolen property was traced to the possession of any of theappellants, and proof of their complicity in the crime depended ent irelyon the reliability of their purported identification by Charles Appuhamy.It was a point in his favour that lie knew them before. On the otherhand, neither he nor the other prosecution witnesses had previouslyseen them in eacli other’s company. According to Charles Appuhamy,he identified the appellants by the light of a kerosene oil lamp ; but whenthe Headman arrived on the scene this lamp was found lying on the groundin a damaged condition with its chimney broken. Charles Appuhamysays that there was also a small lamp used by his customers for lightingcigars and cigarettes, but no such lamp is mentioned in the evidence of theHeadman or of the Police officers who visited the boutique on the followingmorning. The jury was not invited to hold that the light reflected bythis -second lamp, which was not n production in the ease, could haveserved as an aid to identification. The Police found some decipherablefinger-prints at the scene of the burglary, but the expert who examinedthem could not connect them with any of the appellants.
In this state of the evidence, a great deal turned on the conduct ofCharles Appuhamy during the interval of time which elapsed betweenthe completion of the crime and the arrival of the Headman over twohours afterwards. Throughout this period he was in the company of hisimmediate neighbours all of whom knew him well and also knew theappellants. It would bo natural therefore to suppose that, if a man inhis situation had in fact identified some of his assailants, he would havementioned that fact to his friends. But as far as the 2nd and 3rdappellants are concerned, this is precisely what he admits was not done.
Charles Appuhamy stated that lie did at any rate mention to the -witnessUkku Banda, but to nobody else, that Hethuhamy (i.e., the 1st. appellant)■was the person who had stabbed him. But his evidence on this pointwas categorically contradicted by Ukku Banda. The reliability of theidentification of all the appellants was therefore a matter which calledfor very cautious scrutiny.
The only explanation given by Charles Appuhamy for his failure tomention the names of the 2nd and 3rd appellants to anybody until theHeadman arrived was that he was “ in pain '■ and that “ the child wascrying It is indeed a question whether such a lame excuse for reticenceon the part of a villager in the company of his friends could reasonablybe believed. But the weakness of the case against the appellants wasfurther increased when Miidalihamy said that, before leaving the Head-man’s house, Charles Appuhamy expressly stated that he “ did not knowwho the thieves were ”. This evidence, given by a witness whom prose-cuting Counsel did not apply to treat as hostile or adverse, is supportedby what Miidalihamy told the Headman at about 0.30 p.m. So signifi-cant an item of evidence should have been brought prominently to theattention of the jury in the summing up ; in fact it was not mentionedat all. On the contrary the jury were invited to consider the possibilitythat Mudalihamy had deliberately suppressed ” the names pf the appel-lants because “ the names involved his own relations ”. There was noevidence to support this suggested theory of suppression, and the juryshould not have been misled into the belief that- Miidalihamy had perhapsbeen told something by Charles Appuhamy implicating any of the appel-lants before he went in search of the Headman. The learned Judge’ssumming-up on this part of the case was therefore defective both formisdirection and for non-direetion as to the evidence which was favourableto the defence.
The jury were also misdirected as to tke law in regard to another aspectof the issue of identification. As Charles Appuhamy alone had purportedto identify the appellants, it became very important to test his evidence(lacking as it did “ corroboration ” in the strict sense of the term) in thelight of his conduct during the interval of time preceding the arrival ofthe Headman. Ukku Banda was apparently the first neighbour to reachthe scene after the commission of the crime, and he denied that CharlesAppuhamy had implicated even the 1st appellant as a person who hadtaken a prominent part in the commission of the crime. Iso request wasmade on behalf of the Crown to treat him as an adverse witness, and itwas not suggested to us in the course of the argument that such an applica-tion, if made, ought to have been allowed. His evidence at the non-summary proceedings was (so Mr. Pullenayagnm confirms) consistent withwhat he said at the trial. The learned presiding Judge, however, tookover the “ examination-in-ehief ” of Ukku Banda, and twenty-one conse-cutive questions were put to him for the purpose of suggesting that hiscontradiction of Charles Appuhamy on this crucial matter was untrue—indeed, the opposite of the truth—because it was contradicted by a state-ment which (so the presiding Judge categorically asserted) he had made toa Police officer on the morning after the burglary. The witness persistedfor some time in denying that he had been guilty of any such inconsistency;
but the learned Judge continued, in so many -words, to assure him t hat liehad. Eventually, the witness acknowledged the suggested inconsistencybut refused to retract his assertion that Charles Appuhamy had notmentioned the 1st appellant’s name to him until the Headman arrived.
A presiding Judge is no doubt entitled, in the exercise of his discretion,to interpose questions to a witness for the prosecution during his examina-tion-in-chief, and in rare eases he may even be justified in questioning himwith such severity as to suggest that that his evidence is unworthy ofcredit. But on any vital point of controversy, it is generally far moresatisfactory to leave the conduct of the case for the Crown in the handsof the Advocate selected for the purpose by the Attorney General. Pro-secuting Counsel should make his own decision whether or not to apply tothe Judge for permission to cross-examine as an adverse witness a manwhom he has advisedly called.■
The Police officer who rccordcdUkku Banda’s statement on the morningof loth June 19.31 was not called to give his version of what exactlyUkku Banda had said on that occasion. The jury were therefore left,to speculate as to the extent and gravity of the inconsistency imputed tothe witness. After all, the vital question was whether Charles Appuhamyhad mentioned the 1st accused’s name aI the earliest ojrportiinity, and notwhether he had mentioned it at some later point of lime. Ukku Banda’sadmission of inconsistency was not so “distinct” as to obviate the neces-sity for calling the Police officer, as provided by section 145 (2) of theEvidence Ordinance, to prove what Ukku Banda had actually said tohim. It is also reasonable, wc think, to conclude that Ukku Banda’s“ admission ” was based not so much on his own recollection of what he.told the Police officer on loth June 1954, as on the assurance given tohim 14-i months later by the learned Judge who was himself guided bythe contents of the officer’s note hook.
Tiie learned Judge explained to the jury why he had taken up theinterrogation of Ukku Banda. “I felt,” lie said, “ that on that pointhe was trying to mislead you Having referred to the “ inconsistency, ”he directed the jury that the statement made to the Police officer on theearlier occasion was relevant in two ways—“ not merely to know whether• Ukku Banda was told by Charles Appuhamy that Hctlnihamy (i.c., the1st appellant) stabbed him, but also to show you that what Ukku Bandatold 3rou here cannot be relied upon on that point ”. In our opinion thefirst part of this passage constitutes a misdirection.
“ If a witness is proved to have made an earlier statement in distinctconflict with his evidence on oath, the proper direction to the jury isthat his evidence is negligible anti that their verdict should be foundon the rest of the evidence. ” Jl. r. Harris l.
But in the present case certain parts of tlie summing-up might well havemisled the juty into thinking that their disbelief of Ukku Banda wasa factor which would entitle them to accept as true Charles Appuhamy’sassertion that he had in fact named the 1st appellant as his assailant atthe earliest opportunity ; in other words, that they were justified inregarding Ukku Banda’s earlier statement to the Police (though re-pudiated at the trial as incorrect) as substantive evidence in favour of the
* (1027) 20 C. A. It. IOC.
case for the Crown. It is no doubt true that-, at the commencement of hissumming*up the learned Judge had told them that this was not the law.Unfortunately, the effect of the earlier explanation in general termswas nullified by the specific direction given in this particular context.
The jury might very well have been influenced by this misdirection inapproaching the crucial issue whether Charles Appuhamy did mentionthe 1st appellant’s name at the earliest opportunity. In view of UkkuBanda’s unequivocal denial at the trial that such a statement was madeto him, the jury should have received a clear direction in conformity withthe rule laid down in R. v. While l. In that case, a prosecution witnesshad similarly given evidence which supported the defence, but, whenconfronted with contrary statements previously made in the absence ofthe accused, he admitted having made these earlier statements but sworethey were mistaken. Lord Hewart C.J. observed :
“ It is one thing to say that, in view of an earlier statement, thewitness is not to be trusted : it is another thing to say that his presenttestimony is to be disbelieved and that his earlier statement, which henow repudiates, is to be substituted for it
This latter inference, which is not legitimate, is what the jury werevirtually invited to draw in the present case.
If a man’s evidence on any particular issue is demonstrably unreliableowing to some proved or distinctly admitted inconsistency on a materialpoint, his evidence is worthless and cannot properly be taken into accountat all for the purpose of deciding that issue. It is illogical to conclude inaddition (1) that, because his evidence cannot be acted upon, the oppositeof what he said represents the truth, and (2) that as the opposite of whathe said at the trial happens to coincide with the version given by anotherwitness, the veracity of that other witness is thereby confirmed.
If the jury rejected Ukku Banda’s evidence, Charles Appuhamy’suncorroborated evidence stood by itself, and represented the whole of thecase for the Crown. It had to be tested in the light of his admissionthat he had not mentioned the names of at least two appellants at theearliest favourable opportunity and also in the light of his uncorroboratedassertion that he had mentioned the name of the 1st appellant to onlyone of his numerous friends who remained with him for over two hoursuntil the Headman arrived. Having regard to his unconvincing excusefor reticence (which was out- of harmony with the normal habits of theaverage Sinhalese villager) we doubt if the jury, properly directed, couldreasonably have returned a verdict against any appellant. Add to thatthe circumstance that, according to the prosecution witness Mudalihamy,Charles Appuhamy had, in answer to a specific question, replied thathe “ did not know who the thieves were ”. In that state of the evidence,a verdict of guilt, if not vitiated by misdirect ion, might well have justifiedthe reproach that it was quite perverse..
For all these reasons, we took the view that the trial of the appellantswas unsatisfactory, and that the verdict-s against all three appellantsshould be quashed.' -‘– – –
-.–Verdicts quashed. .
1 (1922) 17 C. A. R. 69.