070-NLR-NLR-V-62-THE-QUEEN-v.-H.-JALATHGE.pdf
~R ASKTAYA.KE, C.J.—The Queen v. JalaChge
385
[In tttr Court of Chi mi nax, .Appeal]
1960 Present: Basnayake, C.J. (President), Gunasekara, J., and
Sansoni, J.
THE QUEEN v. H. JALATHGEAppeal No. 79 of 1900, with Application No. 93S. C. 20—M. G. Tissamaharama, 32402
Evidence—Gross-exrtminalion of witness as to previous statements made by him inwriting or reduced into writing—Permissibility—Evidence Ordinance, s. 145 (1).
There had been a previous trial which hnd proved abortive as the jury weredivided 4 to 3. At the second trial Counsel for the accused sought to utilisethe evidence given at the previous trial for the purpose of contradicting someof the' prosecution witnesses.
Held, that under section 145 (1) of the Evidence Ordinance the defenceCounsel was entitled to utilise the previous proceedings for the purpose ofcross-examining the prosecution witnesses.
-/^.PPEAL, with application, against a conviction in a trial before theSupreme Court.
Colvin JR. de Silva, -with M. L. de Silva, for Accused-Appellant.
J.G. T. Weeraratne, Crown Counsel, for Attorney-General.
June 9, 1960. Basnayake, C.J.—
In this case the accused was indicted with an offence punishable undersection 300 of the Penal Code, for shooting Police Constable No. 889Carolis. It would appear from the proceedings that there had been aprevious trial which had proved abortive. The present trial commencedon 31st March, 1960 and ended on 12th April, 1960. The transcriptof the proceedings shows that in the course of the case for the prosecutionlearned counsel for the accused sought to utilise the evidence given atthe previous trial for the purpose of contradicting some of the prosecutionwitnesses but that he refrained from doing so on an indication from thelearned presiding Judge that the trial should proceed without anyreference to the previous trial.
This is how the relevant portion of the transcript of the shorthandrecord reads :—
“ Croton Counsel:Before I commence my cross-examination I would
like to draw Your Lordship’s attention to theevidence, of this, accused at the previous trial.
17—EXIT
2J. N. R 15187—1,995 (1/01)
386
BASNAYAKLE, C.J.—The Queen v. JaZathge
Court :We -will go on with this case without any reference
to the previous trial. ”
Some time later in the course of the cross-examination of the accused,learned Crown Counsel put the following questions :—
** Q. pan you recall the evidence you gave at the previous trial ?
A. Yes, I remember.
Q. Did you on that occasion tell this Court that the Inspectorof Police, Tissa …. ”
Thereafter the transcript reads as follows :—
“ Defence, counselto Court :
Court:
My Lord, I object to my learned friend referringto any evidence given at the previous trial.
But a witness can well be asked about a formerstatement he made which is inconsistent with hisevidence here ?
Defence Counsel :I object because when I tried to question a witness
for the prosecution yesterday about his evidenceat the previous trial Your Lordship did not allowme to do so.
Court :As far as J remember I merely expressed the view
that evidence given at the previous trial should beavoided as much as possible but I did not make anorder.
Defence Counsel :On Your Lordship telling me not to refer to the
evidence at the last trial, I did not refer at all to it.So that now if Your Lordship allows my learnedfriend who appears for the prosecution to do soI submit that it will be unfair for the defence and tothe accused because I have not had the privilege oradvantage of cross-examining the witnesses for theprosecution on the previous trial.
Crown Counsel :Except this, that I have provision to utilise that
section with Your Lordship’s permission wherethis accused makes a completely different statementat this trial.
Court to Crown
Counsel:I think you had better refrain from doing so because
I have got a feeling that Mr. Perera may have agrievance though I do not think I over-ruled anyof his questions.
BASNAYAKE, C.J.—The Queen v. Jalathge
387
Defence Counsel :Your Lordship definitely told me net to ask any
questions on the previous trial because the recordwas not before Your Lordship’s Court. OtherwiseI would have cross-examined the witnesses veryseverely.
Court :What X really felt at the time was that one did not
have for ready reference, any particular answer givenby a 'witness at that time. So I merely made asuggestion that it is better if we can go throughthe evidence in this Court without involving our-selves too much with the evidence given at the lasttrial.
Crown Counsel :X am prepared to take the answer that he gave
because I have with me the evidence given by himon the previous occasion—I have made on myown notes because I prosecuted at that last trialalso, but if Your Lordship thinks that there mightbe an element of unfairness I will certainly dropthe matter.
Court :I do have a definite recollection of cautioning
counsel on both sides not to get too much involvedin the evidence given at the previous trial.
Crourn Counsel :My Lord, in that case X will not pursue the matter.
As it is, in my view, the accused has said sufficientfor the purposes of my case.”
It would appear from the passages of the transcript reproduced abovethat defence counsel was precluded by the trial Judge from utilising thestatements made by the prosecution witnesses at the previous trial forthe purpose of cross-examining them. Under section 145 (1) of theEvidence Ordinance, defence counsel is entitled to cross-examine awitness “ as to previous statements made by him in writing or reducedinto writing and relevant to matters in question without such writingbeing shown to him, or being proved ”. That right was denied to theaccused in this case, and we think that the learned trial Judge was wrongin not permitting defence counsel to utilise the previous proceedings forthe purpose of cross-examining the prosecution witnesses. Of the groundsof appeal the only ground which counsel for the appellant pressed is ground7 which reads as follows :—
“ It is respectfully submitted that the defence was illegally precludedfrom utilising the evidence at the previous trial of the prisoner and thatthis led to a miscarriage of justice. ”
That ground is one of substance and must be upheld. We accordingly11 ow the appeal and quash the conviction.
388
In re Vidyusagara.
There remains for consideration the further question whether weshould direct a judgment of acquittal to be entered in favour of theappellant or order a fresh trial. This offence was committed two yearsago. The accused has had to stand two trials at great expense to himself.The present trial lasted from 31st March 1960 till 12th April 1960. Weare of opinion that, in the circumstances of this case having regard to thenature of the prosecution evidence, and the fact that at the first trialthe jury were divided 4 to 3, the accused should not be put in jeopardya third time, and direct that a judgment of acquittal be entered in hisfavour.
Accused acquitted.