THE QUEEN v. G. K. JAYASINGHE and others

066-NLR-NLR-V-69-THE-QUEEN-v.-G.-K.-JAYASINGHE-and-others.pdf


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The Queen v. Jayaainghe
[Court of Criminal Appeal]
1905 Present: Sansoni, C.J. (President), H. N. G. Fernando, S.P.J.,and G. P. A. Silva, J.THE QUEEN v. G. K. JAYASINGHE and 6 othersAppeals Nos. 31 to 37 of 1965, with Applications Nos. 36 to 42S. C. 124 of 1964—M. 0. Kalawana, 88577
Evidence—Accomplice—Corroboration—Summing-up—Non-direction.
Boforo each of joint accused persons can be convicted upon the evidence ofan accomplice, a clear direction is always necessary that the corroboration thatthe law requires in respect of the evidence of an accomplice is corroborationin some material particular tending to show that each accused committed thecrime charged. Corroborative evidence against some of the accused cannotbe used to accept the evidence of the accomplice even as regards the otheraccused.
Where the trial Judge, in his directions concerning accomplice evidence,lays unusual stress on the point that corroboration of such evidence is not anessential requirement, it is his duty to stress the gravity of a decision to convicton uncorroborated accomplice evidence. If the accomplice’s evidence is verynearly uncorroborated and is false on some material points, it is the dutyof the Judge to direct the Jury to consider whether it would be safe to convictupon the accomplice’s testimony.
The power given to a trial Judge to express opinions on questions of factmust be used cautiously, more so in respect of the uncorroborated evidence ofan accomplice.
Evidence of corroboration, like all other evidence, has to be weighed. Itmay be legally admissible for the purpose of corroboration, but its probativevalue as corroboration may be very slight or nil. Thus a statement made byan accomplice that the accused persons came to see him in a car at about12.30 a.m. may be corroborated by another witness who says that he saw theaccused at about 2 a.m. on the same day at a point about fth mile from thescene of offence, but such corroborative evidence has little probative valueif there is nothing else in it to connect the accused with the offences committed ,.
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A.PPEALS against certain convictions at a trial before the SupremeCourt.
E. F. N. Gratiaen, Q.G., with Eardley Per era and M. A. Mansoor, for1st Accused-Appellant.
E. F. N. Gratiaen, Q.C., with ilf. A. Mansoor and Anil Obeyesekera,for 2nd Accused-Appellant.
E. F. N. Gratiaen, Q.C., with A. C. M. Ameer, Q.O., M. A. Mansoor andAnil Obeyesekera, for 3rd Accused-Appellant.
E. R. S. R. Coomaraswamy, with Kumar Amarasekera, for 4th and 5thAccused-Appellants.
G. E. Chitty, Q.C., with E. R. S. R. Coomaraswamy and KumarAmarasekera, for 6th Accused-Appellant.
Colvin R. de Silva, with M. L. de Silva, (Miss) Manouri de Silva,
P.0. Wimalanaga and Kumar Amarasekera, for 7th Accused-Appellant.
Jayetileke (Assigned), for all the Accused-Appellants.
V. Thamotheram, Deputy Solicitor-General, with Siva Pasvpali, Crown•Counsel, and Ranjit Abeysuriya, Crown Counsel, for the Crown.
Cur. adv. vult.
October 4, 1965. Sansoni, C.J.—
In this case eight accused were indicted on three counts. After trialthey were all convicted on all the counts, except the 8th accused whowas acquitted on all the counts. The seven convicted accused haveappealed.
On the first count they were charged with having conspired between20th July 1962 and 21st August 1962 to commit the murder of one Silva.On the second count they were charged with the murder of Silva betweenthe 20th and 21st August, 1962. On the third count they were chargedwith the murder of one Punchimahatmaya, at the same time and placeas the murder of Silva.
The case for the prosecution rested almost entirely on the evidence of awitness named Daniel, who was at the time in question an attendant atKalawana Hospital, where the6th accusedalso worked as the Apothecary.The 1st accused was the Inspector of Police, Kalawana. The 2ndaccused was a Police Constable and the 7th accused a Police Sergeant,both under the 1st accused. The 3rd accused was a landed proprietor
i
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who owned land at Kalawana, but who resided mainly at Dehiwela,many miles away. The 4th accused was the Village Committee Chairmanof Kalawana. There is no evidence as to the 5th accused’s occupation.The 8th accused was a motor mechanic, who also worked at times as amotor car driver under the 3rd and 4th accused.
The murdered man Silva was an Ayurvedic Physician, who also appearsto have encouraged unlawful gambling in his house ; the murdered manPunchimahatmaya was Silva’s servant.
Daniel said that, shortly prior to the 1st of August, he went to the 6th'accused’s house in the evening at the invitation of the 6th accused. The3rd accused arrived there carrying a live fowl which he himself killed.1st, 4th and 5t.h accused also came to that house. Daniel cleaned andcooked the fowl, boiled some vegetables, sliced some bread and then allthoso accused who were there dined in that house that night. Danielsaid that ho hoard some of the conversation that took placo during themeal. The 1st accused said “ If Silva is allowed to remain it will not bopossible for us to live. Something must be done to that fellow. ” 3rdaccused said : “ He has given me also a bit of trouble ”, and 4th accusedsaid “ That is not much of a job Daniel does net claim to have heardthe 5th or 6th accused saying anything, except that 6th accused warnedDaniel not to tell anyone of what had been said during that conversation.
The next series of incidents spoken to by Daniel are said to havooccurred on the night of 20th August. He reported for night dutyat about 6 p.m. as a substitute for another attendant called Charles.Ho said that both Charles and the 6th accused asked him to bo on dutythat night. When he was at the hospital, tho witness named Ekmonasked him to go and meet tho Gth accused who was near the Mortuary inthe hospital premises. When he went up to the Gth accused, the lattertold him to direct any patients who might come to the hospital to the2nd Apothecary. Daniel said ho then returned to the hospital.
At about 12.30 a.m. on the 21st morning, according to Daniel, twomotor cars came near the hospital ; and the 6th accused, who was amongthose who arrived in the cars, took him up to them. In one there werothe 1st, 2nd and 7th accused : that was the 1st accused’s car drivenby the 1st accused. In the other car, 8t.h accused was tho driver, andthe 3rd, 4th and 5th accused got down from it. All the occupants oftho cars, except the 8th accused, came up to him, and the Gth accusedtold him that he had to do a small job, viz. to strike a barrel or a zincshoot and thus make a noise, when he heard tho report of a gun shot.Daniel also said that at that time 2nd accused took a double barrel gunfrom tho 4th accused’s car, while the 3rd accused had a pistol or revolverwhich he loaded. 2nd and 3rd accused then walked away, 3rd accusedsaying “ Now the time is approaching ”. When Daniel started to walkback towards the hospital, tho 6th accused called him back and orderedhim to get into the 1st accused’s car which the 6th and 7th accused alsoentered. 4th, 5th and 8th accused were the occupants of the other car."
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Both cara travelled in the direction of the deceased’s house. 5th accusedstopped near the 23rd mile post, while 7th accused was dropped near ahouse belonging to one Bentara Mudalali. The deceased’s house isbetween these two points. Daniel said that he saw the 2nd and 3rdaccused entering the rear compound of the deceased’s house. He wasthen tcld to go back to the hospital, and carryout the instructions he hadbeen given.
According to Daniel, when ho was near a hospital ward he heard a loudsound like the report of a gun shot, and he then threw a stone which hita barrel. About half an hour later the 1st accused’s car arrived withthe 1st, 2nd, 3rd and 6th accused in it. Tho 1st accused took Daniel tothe car and warned him not to talk about what had happened.
At the post mortem examination of the two dead men, the Doctordiscovered that Silva had been shot with a revolver, and Punchimahatmayawith another firearm. The post mortem on Silva was at 2.30 p.m. and onPunchimahatmaya at 4.30 p.m., both examinations having been held onthe 22nd August, and the Doctor’s opinion was that the two men haddied 36 54 hours earlier.
That evening Daniel got to know that Silva and his servant Punehi-mahatmaya had been_ killed. He did not disclose what he knew toanybody until the 12th September, when he was taken by a PoliceConstable to his own house which was searched, and also to the deceasedSilva’s house. He admitted that when he was questioned about thomurders ho at first denied all knowledge of tho matter ; later ho madea lengthy statement disclosing all he knew.
It was accepted by the prosecution and tho trial Judge that, on hisown evidence, Daniel was a self-confessed accomplice who was well awaroof the conspiracy he claims to have heard being hatched, and of theplanning of the crimes that were going to be committed on the night inquestion. Daniel’s character was attacked while he was under cross-examination. It appeared that complaints had been made against himof dynamiting fish ; molesting school girls (for which lie had sent anapology to tho Principal of the school) ; being drunk while on duty attho hospital ; and committing criminal intimidation.
Ho admitted that he had experience in tho handling of firearms, andcould shoot well. Tho defence suggested to him that it was he who hadmurdered Silva and Punchimahatmaya, and that one of the stops hotook prior to committing that crime was to have his hair cut on tho10th August in order to disguise himself. Further suggestions made tohim by the defence, which appeared-to have the support of Daniel’sstatement to the Police, were that ho had married on the 1st March 1962a woman who, ho later came to know, had been intimate with a PoliceConstable called Gunasinghe ; that the deceased Silva had in his possessiona letter (1D16) written prior to her marriage by Daniel’s wife to Guna-singhe in very affectionate terms ; that Silva had refused to returnthe letter to Gunasinghe or to Daniel in spite of their request to him toreturn it.
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Mr. Gratiaen, who appeared for the 1st, 2nd and 3rd accused-appellantsurged the following grounds of appeal:—
that the Jury were misdirected and misled by the learned
Commissioner of Assize in his charge, on a vital issue of law,viz., (a) the proper approach to the evidence of an admittedaccomplice, and (6) what constitutes corroboration of anaccomplice ;
the learned Commissioner should have made it clear to the Jury
that there was no independent evidence of corroboration. Hehad, instead, made them believe that what could not constitutecorroboration was in fact corroboration ;
the summing up as a whole did not deal adequately with the
evidence and was not fair to the accused ; and the facts weredealt with in such a way as to favour the prosecution theory; and
the case for the defence on the facts was not adequately placed
before the Jury.
Counsel appearing for the other appellants supported Mr. Gratiaen’ssubmissions on these points. We shall deal first with the 3rd and 4thsubmissions.
At the time of the murders there were pending in the Rural Court,Kalawana, two criminal cases filed by the 1st accused against Silva,charging him with gambling and permitting his premises to be used forgambling. Silva had obtained summons against the 1st accused’s motherand sister to appear as witnesses for the defence at the trial, which hadbeenfixed for August 24th. It was apparently suggested by the prosecutionthat this was a matter which would have made the 1st accusod annoyedwith Silva. A petition had also been sent by Silva, into which the AssistantSuperintendent of Police had inquired. The learned Commissionersuggested many times to the Jury that feelings between Silva and the1st accused were bitter as a result of these cases and summed up hisopinion by saying: “ The simple question is, if the gambling case wasa false case or if the petition was a false petition, then don’t you thinkthat the feelings were getting enraged, that they were angry 1 ‘Here,I am on the point of feelings. Now, gentlemen, if you are satisfied thatthere was this state of feelings, then, gentlemen, I think you shouldconsider this matter of the letter in which Daniel was interested, theletter 1D16, in that setting.” The learned Commissioner then toldthe Jury that the letter was most probably written by Beeta, the wife ofDaniel, to P. C. Gunasinghe in January 1961; that Silva, who had theletter, would have thought it was a very useful document to use againstP. C. Gunasinghe, when the latter gave evidence in the gambling cases;that Gunasinghe and Daniel and 2nd accused had tried to get the letterfrom Silva, but the latter had refused to give it up.
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He theD asked the Jury to consider whether Daniel had tried to get theletter from Silva on his own account, or whether he had done so to helpP. C. Gunasinghe, telling the Jury : “ In those circumstances, gentlemen,was Daniel trying to get the letter for himself or was Daniel, in the settingI told you of, trying to get the letter to help the police officer, that isGunasinghe ? It is a matter for your consideration. ”
But he did not leave it to them to decide the matter for themselves,because he immediately thereafter said : “ Then, gentlemen, if Daniel wasgetting the letter in those circumstances, trying to help Gunasinghe toget the letter back—the case was for the 24th August—do you think,Gentlemen, that if Daniel was only doing that, there was this over poweringmotive for Daniel to kill ? Daniel may have been annoyed that he didnot got the letter he asked for, but do you think that in the provedcircumstances, that Daniel would have an over-powering motive to kill ?Daniel may have been one who had a grievance with Silva, reason to beannoyed with Silva, but do you think that he was the person who had anover-powering motive to kill, in those circumstances ? Do you think,Gentlemen, that if this woman had been intimate with a constable, thatthat fact would not have been known to a number of police officers andothers. Do you think that it would be a possible source of shame toDaniel if it came out and this letter was read in Court ? It is a matterfor you all who are now representing common sense. ”
The Jury were thus told in no uncertain terms (1) that feelings betweenSilva and the Police were bitter, (2) that Daniel was not personallyinterested in getting the letter from Silva, but was only trying to helpP. C. Gunasinghe, (3) that Daniel had no motive to kill Silva. Thispart of the summing-up ended by his saying:“ Then, gentlemen,
if you come to the conclusion that there was not an over-powering motivefor Daniel to kill, then, Gentlemen, what is the reason ?” He thusindicated to them plainly, on the logic of this reasoning, that there was nocause for Daniel to kill Silva. One assumption followed another, buteach theory put forward was treated as proved, and the final conclusionthen stated as though it wa3 the only possible one.
The learned Commissioner then dealt with what he considered a glaringuntruth in Daniel’s evidence. He said : “ I think you will not have alot of difficulty in coming to the conclusion that Daniel is a liar when hesays here he did not know about his wife’s intimacy with Gunasinghe,that he know nothing about it. Is there any reason, gentlemen, forDaniel giving false evidence on this point ? Well, gentlemen, this is oneof the matters that you will consider on that matter. Daniel is aware,gentlemen, rightly or wrongly, that this letter will be treated as beingthe motive for the murder on his part because he was in search of thisletter and he wanted this letter. So, is he now denying any knowledgeof this intimacy and anything about it merely because he is afraid thatif he admits it, then you can possibly come to the conclusion that he had
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a motive for the murder, which according to his own way of thinking,ho never had. In other words that a wrong impression would be createdand this is the way of combating that wrong impression. You willremember, gentlemen, that a submission has been made to you byMr. Chitty that Daniel has made peace with the prosecution by givingthis evidence in this case. Mr. Chitty went on to explain that as far ashis know-ledge wrent nobody who has given evidence in this fashion hasever been charged with tho offence, but you will remember this, that maybe factually correct, but does Daniel know it 1 Daniel has not beengiven any pardon. The Crowm has been repeatedly saying that Danielcan be charged with murder. Probably it may not havo happenedbefore, but there can always be the first time to anything. So gentlemen,it is a matter that you will have to consider whether that is an excusefor Daniel giving false evidence on that point. It is a matter for you toconsider when you consider the credibility of Daniel. Do you thinkthat is an explanation that you can accept, inferentially ? I mean bydrawing inferences do you think that he is a man who has all these mattersin mind and that you cannot believe him on any matter. As I told you,that is a matter again for you. ” In this passage a strong point whichthe defence had made against Daniel’s credibility was whittled down,and the Jury were again clearly told that Daniel’s untruthfulness waspardonable.
Daniel’s demeanour in the witness-box was next dealt with by thelearned Commissioner, who might surely have left it to the Jury to decidefor themselves what impression his demeanour had made on them. Butthey were told this : “ Now it has beon proved that he was cross-examinedby very eminent Counsel for many days in the Magistrate’s Court. Ifyou think, gentlemon, that that ordeal, I advisedly use tho word, ordeal,has had any effect on his reaction and his demeanour in this Court, youwill give some allowance for it on that ground. I do not for a momentintend to tell you that cross examination is not necessary. Cross-examination is very necessary because it is the one weapon by which thetruth can be searched for and found out, but you will agree that whoeverit is who has been searchingly cross-examined, even if he is a witnessof the truth, that he is restrained. You will remember what Daniel saidhero. He said, “ Even in the Magistrate’s Court I was cross-examinedfrom morning till evening sometimes for hours together and during thattime I may have faulted in giving answers. ” That is what he saidheic. ” Then, after quoting at length from a part of the cross-exami-nation, the learned Commissioner said : “ Do you think or do you notthink that it is possible for him to have made mistakes during that time.If you think that the length of his cross-examination may have madehim to fault at times, that is a matter upon which you wall give someallowance for him when you are assessing his credibility as a witness.That again is entirely a matter for you. I am merely telling you theoxcuse that the witness gave. ”
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The learned Commissioner then dealt with Daniel’s account of theincidents of the night of 20th August. He pointed out the improbabilitiesof the story, viz. that the accused should have come to Daniel at all thatnight; that after asking him to hit the barrel, they should havo takenhim away in the car, as though they wished him to get to know a numberof details which ho would not otherwise have learnt; that there was nopurpose in his hitting the barrel. These were very apposite comments,which should have made the Jury suspect the truth of Daniel’s story.But the learned Commissioner proceeded to undo all tho good he hadthus done by then telling the Jury : “ Now, first of all, gentlemen, ifDaniel is telling a fabricated story, the defence position is that Danielhad timo to think of what he was going to say ever since he took part in.this incident. Naturally, gentlemen, Daniel took part in this incident.Whether he played a small part, as lie says, or whether ho played a muchlarger part, he played a part so that natural human instinct thereafterwould be “ what am I going to say if I get caught. ” Quite legitimately,tho defence say that from tho day of the incident right up to the time hohad to mako his statement he was thinking of what he had to say. Thengentlemen, do you think that these same points would not have struckDaniel if it struck all of us, if he had time to think. Do you think if howas fabricating a story—you saw Daniel in the box. He has beendescribed to you by the defence as a man of resourco and ingenuity, andassuming you are of that same opinion, do you think he was so devoid ofresources or ingenuity that he could not think of a story in which hebecomes a witness without being involved in it. Remember, Danielinculpates himself and as I said, if he was thinking of a false story, won’tthese very same points that appeared to be unusual strike him also ? ”In other words, he told them that the very improbability of Daniel’sstory was a guarantee of its truth.
With regard to Daniel having had his hair cut, and the defence sugges-tion regarding that, the learned Commissioner again gave the Jury severalreasons as to why they should not regard it as a suspicious circumstanceagainst Daniel, and why they should accept Daniel’s evidence on thispoint.
Daniel had said that on the night in question he saw 2nd and 3rdaccused crossing a stile into Silva’s garden. Tho defence had attackedhis evidence on this point. The learned Commissioner dealt with thisattack in the following passage : “ There again, gentlemen, itTis suggestedthat this is an artistic touch that Daniel sees these people just crossingthe stile and not at any other point. It is a matter you will consider, butGentlemen, you will consider if it is a case of wanting to implicate thosepeople, why does he not say “ we took those two people, we droppedthem and came back ” ? Why does he w'ant to give this other versionif he wants to falsely implicate those people ? Does he know tho Jaw
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regarding common intention ? Do you think that it was not simplerfor him to say ‘ we took these two people and put them there insteadof giving this story ? Gentlemen, you must, when you consider the story,consider it from the point of view whether it is true because if it is true,what can a man say except what he saw. What can he say exceptwhat he saw. You will consider whether it is a false story or a true storyThose are matters for your consideration. ”
The defence had suggested also that Daniel’s evidence regarding thealleged meeting of 1st, 3rd, 4th, 5th and 6th accused at 6th accused’shouse was false. The learned Commissioner said on this point: “ Now,gentlemen, is there anything unusual or improbable in people like thatcongregating once in a way at the house of one of them, specially in adistant outstation ? Is there anything unusual at such a gathering forthem to drink and eat some thing in a way that the burden does not fallon one ? Do you think that the owner of the house should stand on hisdignity and say, ‘ I am not going to allow you to bring any food. I amgoing to stand the cost of all that. ’ That is a matter for your considera-tion. Well, gentlemen, assuming that you como to the conclusion thatthere is nothing specially improper in a thing like that then gentlemen,do you think that it is something that cannot happen or most unlikelyto happen that the 3rd accused, a gentleman from Dehiwala, whose houseis at Dehiwela, do you think that if there was such a meeting that therewould be anything unusual in his walking in with a fowl in his hand ? Isit that his status in life, whatever it is, would prevent him doing a thinglike that or that it is below his dignity to wring its neck ? Well gentlemen,as I said then, at such a meeting because there is a servant who does thenormal cooking—we do not know how efficient his cooking is becausethere is no independent evidence on the point, we know that he is a boyof about 15 years of age, do you think it is an unlikely thing that a manwho is better known as a cook is asked to give a little help on that parti-cular day ? Daniel’s evidence is this was not the first occasion on whichhe did a thing like that. A point is made that any one can boil a fowland from the fact that Inspector has recorded Daniel as using the word,boil, it is sought to show that this a false story. Assuming that the wordthat Daniel used is, boil, is it not possible that there are some people whocan boil a fowl more tastily than others ? We do not know whetherSurascna could boil a fowl. Daniel says that anybody can boil a fowl,but we do not know how competent Daniel is to say that. There is thecleaning and so many other things to do. So whatever it is Daniel saysthat is how he happened to come there and then gentlemen, do you thinkthat it is not possible that if these people had met there, that there wasthis talk going on ? I mean there is nothing to show that a plan hadalready been formed or that they met there to form a plan. That isnobody’s evidence. All that Daniel says is that when he was there heoverheard these snatches of conversation and in the light of whathappened, he remembered these particular snatches of conversation.Do you think gentlemen, that their having got together, having had some
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drinks, they were talking in that way and it was possible that they losteight of Daniel being there ; that as soon as he was observed there, hewas asked to go away by the 6th accused ? Is there anything inherentlyimprobable in that story ? Do you think it could not have happenedin that way ? If you think that it could not have happened in that way,then of course you reject the story, otherwise v hat is there that isinherently improbable in that when you take into consideration the peoplewho met there ? Is that something which never happens, for peoplolike that to get together, contribute for the food and is it somethingunusual for a person who is known as a cook to be called in there ? Whatis the point, gentlemen, in Daniel telling you that part of the story ifhe is fabricating something ? He has mentioned the story of the 20th inwhich he brings in eight persons. Here he mentioned the names of the1st, 3rd, 4th, 5th and the 6th accused. Nothing said against the 6thaccused on that occasion, nothing so far as I remember said against the4th accused. The 1st accused is alleged to have said something, the 3rdaccused is alleged to have said something, and the 5th accused is allegedto have said something. Why should Daniel tell this story gentlemen ?Can you think of any reason if he is fabricating this story ? It has beencommented in regard to Surasena that Daniel is anxious here not to revealthe fact.that Surasena was there. Then gentlemen, why did Daniel sayin the Magistrate’s Court that Surasena was there ? It is proved thathe said that in the Magistrate’s Court and he has accepted that and if it issomething that he is wanting to hide, then why say that Surasena wasthere ? ”
The points made by the defence against Daniel’s evidence in regard tothis meeting were not fairly dealt with in the summing-up. One pointwas that there was no reason for Daniel to be summoned by 6th accusedto his house when the 6th accused’s cook Surasena was available to preparethe dinner. Daniel at first denied that Surasena was in the house thatevening, but after he had been confronted with his evidence in the Magis-trate’s Court he admitted that Surasena was in fact there. We shouldhave thought that Daniel’s veracity was shaken by this contradiction.But the learned Commissioner made no point of that at all. Instead,he treated the contradiction as a point in Daniel’s favour, as it showedthat Daniel did not try to conceal Surasena’s presence in the house whenhe gave evidence in the lower Court. This was a quite unfair way oftreating this contradiction. On this one matter Daniel should have beenexposed as a scheming and bold liar, instead of which he was held up as awitness of truth. Another point made by the defence was that if Danieldid cook on that day, it was strange that he was not able to describe theposition of the fireplace in the kitchen. The learned Commissioner’scomment on this was :“ Now gentlemen, the other point in regard to
this story was that Daniel is unable to tell you accurately where thefireplace in the kitchen is. You remember there was a built fireplacewith bars across. Daniel’s evidence is that he cooked on a kerosene oilcooker. If he went there and cooked on a kerosene oil cooker, docs itnecessarily follow he must observe the fireplace in the kitchen ? Is it
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that he is saying something false or is that faulty observation ? If aman goes there to cook and cooks on a kerosene oil cooker, must henecessarily remember the details of this room ? The moment ho isquestioned, he tries to guess. Is that an explanation ? It is a matterfor ycur consideration that the defence says it is false. It is entirely amatter for you. ”
Daniel’s testimony in regard to the conversation which took place inthe 6th accused’s house between 1st, 3rd, 4th, 5th and Cth accused is thesole evidence of the conspiracy. The truth of Daniel’s role as cook at the6th accused’s house, therefore, assumes the greatest importance. Theattack on Daniel supported by the contradiction from the Magistrate’sCourt evidence is one of considerable substance and should have beenput to the Jury in such a way as to make it quite open to them tobelieve or disbelieve him. The explanations given by the learned Com-missioner and the emphasis laid by him on the side of the truthfulness ofthat evidence do not give us the impression that very much was left forthe judgment of the Jury as to the credibility or otherwise of Daniel.
Thus it is clear that on Daniel’s demeanour, his improbable story ofwhat happened on the night of 20tiTAugust, the cutting of his hair, andhis account of the alloged meeting of some of the accused in 6th accused’shouse, the learned Commissioner went to the defence of Daniel theaccomplice, and had nothing favourable to say about tire defencecriticisms of Daniel’s ev idence on these matte rs.
Daniel was first questioned by the Police on the 12th September. Onepoint on which he contradicted his evidence in the loner Court waswhether he was first taken to his own house and then to Silva’s house, orvice versa. The former version was given by him at the trial, the latterat the Magisterial inquiry. The Police version was that Daniel wasfirst taken to his own house first. The learned Commissioner asked theJury to consider whether this “ mistake ” made by Daniel might- haveboen due to the longthly cross-examination he underwent.
Again, it was proved that when Daniel was questioned by the Police heat first said that he knew nothing about the murders. On being ques-tioned further, however, he said that he had not told the truth earlier,and he then related his version of the incidents. No point was made tothe Jury, by the learned Commissioner, of the two contradictory positionsadopted by Daniel when he was questioned by the Police. Instead, theJury were only asked to decide at what stage Daniel was arrested—whether it was when the Police first met him that day, or at some laterpoint of time.
The learned Commissioner then returned to the question of Daniel’scredibility in the following passage : “ Because the simple position stillremains, has he fabricated this story having thought about it or has he
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told the truth ? And as I have told you already, if he has fabricated astory from the 20th of March up to 12th September, was he so devoid ofingenuity that ho must make himself a conspirator ; in other wordsinculpate himself. I have already dealt with some of these points and itjust struck mo now about the story of the barrol and the fact that therewas no dent on the barrel. If Daniel has invented this story of thebarrel, do you or do you not think that Daniel would see to it that therewas a considerable dent on the barrel to show anyone 1 You see it wassubmitted for the defence that if you hit a barrel with a stone with suchforce that there was bound to be a dent . Do you think or do you not thatDaniel also would have reasoned in tho same way ? Do you not tliinkthat Daniel who went round with the police would not have taken theopportunity to take them and point out this dent on the barrel ? Theevidence is that the barrel had no such dent.” The part played by thebarrel had been dealt with previously, and it was hardly necessary toreturn to it to mako this plea on Daniel’s behalf.
Tho learned Commissioner next considered whether Daniel had anyreason for implicating these particular accused, and found none. Henext dealt with the evidence of a witness Liyana Pathirana who alonespoke to anything that could be termed corroboration of Daniel’sevidence against 3rd, 4th, 5th and 8th accused. This witness spoke tohaving seen these 4 accusod in a car at a point about 3/4th mile from thescene of offence, at about 2 a.m. on the morning of 21st August. Thelearned Commissioner asked the Jury to consider whether this evidencedid not support tho evidence of Daniel that these same four accused camein a ear and met him about 12.30 a.m. that morning.
✓
We have tu'o comments to make atthispoint. The first is, that thoughthe evidence of Liyana Pathirana could be considered corroboration, likeall evidence it had to be weighed. It may be legally admissible for thepurpose of corroboration, but its probative value as corroboration maybe very slight or even nil. It cannot be said that Liyana Patliirana’sevidence about 3rd, 4th, 5th and 8th accused went any great distance toconnect or tend to connect these four accused with the offences charged,and to confirm in this way Daniel’s evidence against them in a materialparticular. Apart from the fact that Liyana Pathirana, like Daniel, sawthe four accused together in a car, there is nothing else in Pathirana’sevidence to comicct them with the offences—oven if we overlook theintervals of space and time between the four accused meeting Daniel andPathirana respectively.
We do think, however, that at this stage in the summing-up, or even ata later 6tage, the learned Commissioner should have told the Jury in theclearest possible terms to bear in mind that Daniel’s evidence against1st, 2nd and 7th accused was not corroborated in any way by anywitness. He failed to do so, and this was a grave omission on his part.It was not enough for him to have told them, as he did, that Pathirana’sevidence only corroborated Daniel’s story in regard to the 3rd, 4th, 5th
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and 8th accused. It was all the more necessary for him to tell them thatit did not corroborate Daniel in respect of the other accused, because hereferred to certain evidence given by the witnesses Ariyawathie andEkmon as “ corroboration of the general story related by Daniel ”, or asenabling the Jury “ to decide whether Daniel was truthful or was speakinga lie”, as has been suggested. A clear direction is always necessary, andcannot be too often repeated, that the corroboration that the law requiresis corroboration in some material particular tending to show that eachaccused committed the crime charged. The absence of such a vitaldirection may have induced the Jury to attach undue weight to thocorroboration of Daniel by Liyana Pathirana in regard to the 3rd, 4th,6th and 8th accused, and to make use of that support to accept theevidence of Daniel even as regards-the 1st, 2nd and 7th accused.
Apart from the evidence of Pathirana that he saw 3rd, 4th, 6th and8th accused at about 2 a.m. on the 21st morning, the only corroborativeevidence led in the case was against 6th accused. It was evidence givenby witness Podi Appuhamy, to the effect that on the 21st August eveningthe Oth accused asked him to say that he saw the deceased Punchimahath-maya alive at 11 o’clock that morning. That evidence could be consideredcorroboration of Daniel’s evidence because, in the absence of anyexplanation from 6th accused, it indicated that 6th accused was trying tofabricate evidence to show that the murder of Punchimahathmaya tookplace long after it had actually been committed.
On certain matters the learned Commissioner very fairly told theJury that certain evidence should not be counted against the accused,e.g., the alleged evidence of absconding ; a remark said to have beenmade by 6th accused that Silva had killed himself; evidence that theaccused had been seen together in a club of which they were members :or had been seen talking to each other.
The complaint that the summing-up was unfair to the accused isalso borne out by the manner in which some of the necessary directionsOn matters of law were conveyed to the Jury, and by the omission todirect the Jury adequately on some matters of law.
In the directions concerning accomplice evidence, unusual stress waslaid on the point that corroboration of such evidence is not an essentialrequirement. This point was frequently repeated, and it was omphasisedby such language as “if you are so impressed by Daniel, as a witness oftruth, you are entitled to act on Daniel’s evidence without going to seewhether he is corroborated of not. That is your legal right. You arejudges of fact. Nobody can take it away. ” The learned Commissionerfailed to stress the gravity Of a decision to convict on uncorroboratedaccomplice evidence. These directions were a reflection of the veryfavourable view which the learned Commissioner had himself formedconcerning Daniel. But having thus expressed himself, it became his
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■duty to draw special attention to aspects of Daniel’s conduct and evidencewhich could shake confidence in his credibility. Instead, as we haveearlier shown, the discussions of factual matters were usually hmitedto explanations and suggestions conducive only to belief of Daniel’stestimony.
A proper direction was given at an early stage regarding the approachto the evidence of a witness in a case where it is shown clearly that somepart of his evidence is false. But the actual example mentioned in thedirection was the case of the witness William, who had given false evidenceon an immaterial point, but whose evidence on another, apparentlyimportant matter, was in the opinion of the learned Commissioner veryprobably true. What was thus exemplified was that the falsity of oneitem of the evidence of William did not preclude belief of another itemof his evidence. In the special circumstances of this case, however, thevital question was whether, if the accomplice Daniel’s evidenco wasfalse on some material points, it would be safe to convict upon his testi-mony which was in fact very nearly uncorroborated. It was unfortunatethat this question was not directly posed to the Jury, and if the Jurythought about it at all, the example actually available for their guidancewas one which could only have induced an attitude favourable to theprosecution.
In the case of some of the accused, there was direct testimony fromDaniel indicating the possibility that those accused were concerned in aconspiracy to kill the deceased Silva. In the case of the other accused,a finding on the count of conspiracy could depend only on an inferencefrom the evidence of their alleged conduct on the night of the murderseThe learned Commissioner did not however distinguish the cases of thetwo sets of accused persons on this ground. This omission might ofitself suffice to vitiate the conviction of some of the accused on the firstcount of the indictment. But we here refer to that omission as being one. of tho indications that the mind of the leamod Commissioner was not aliveto matters favourable to the defence.
Looking at the charge to the Jury as a whole, we have come to the conclu-sion that it was of such a character as to deprive the appellants of the subs-tanceof a fair trial—-seo Broadkvrstv. R.1 We have pointed out that thelearned Commissioner dealt with the attacks of the defence on Daniel’scredibility in such a way as virtually to render such attacks harmlessand important. It was particularly necessary that the Jury should maketheir own assessment of Daniel’s credibility, as he was an accomplice
1 {1964) A. C. 441.
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whose evidence, by his admitted role of being an accomplice, was taintedIf the point of each attack made against his evidence was to be bluntedby the learned Commissioner, the accused ran a grave risk of hisuncorroborated evidence being acted upon, and that is what seems tohave eventually happened in this case.
The learned Commissioner expressed his opinions very freely in hischarge, and there is some ground for the complaint that the defencesuggestions were not favourably or fairly dealt with. Lord Devlin, inthe Privy Council judgment cited, pointed out that a jury is likely topay great attention to the opinions of a presiding judge, and that iswhythose opinions should not bo much stronger than the facts warrant.
It is always necessary to bear in mind that the power given to a trialJudgo to express opinions on questions of fact must be used cautiously,more so in respect of the uncorroborated evidence of an accomplice.Although at the commencement of the summing-up the learned Commis-sioner made some preliminary observations which were extremelyappropriate to a case of this nature, and which correctly directed theJury on their proper function as judges of fact, we cannot cscapothe feeling that the total effect of Iris later strong expressions of opinionobliterated the good effect of tho preliminary observations.
Finally, we quote tho following words from that judgment as theyexpress our view of tho learned Commissioner’s summing-up : “ Thosumming-up as a whole cannot be accepted as a fair presentation of thecase to the jury. A fair presentation is essential to a fair trial by jury.The appellant(s) (have) thus been deprivod of the substance of a fairtrial. ”
For these reasons we allow the appeals and quash tho conviction of thoappellants. We have considered w'hether we should order a new trialin this case. We do not take that course, because there has been alreadya lapse of over three years since tho commission of tho offences, andbecause of our own view of the unreliable nature of the accomplice’sevidence on which alone tho prosecution rests._
We accordingly direct that a judgment of acquittal be entered.
Accused acquitted