THE QUEEN v. J. A. D. Q. A. JAYASINGHE

068-NLR-NLR-V-70-THE-QUEEN-v.-J.-A.-D.-Q.-A.-JAYASINGHE.pdf


H. N. G. FERNANDO, C.J.—The Queen v. Jayasinghe
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[COUBT OF CRIMINAL APPEAL]
1967Present: H. N. G. Fernando, C.J. (President),Abeyesundere, J., and Manicavasagar, J.THE QUEEN v. J. A. D. Q. A. JAYASINGHEAppeal No. 66 of 1967, with Application No. 89S. C. 222{66—M. C. Colombo, 26783/CTrial before Supreme Court—Witness for the prosecution—Adverse evidence given byhim—Proof of former inconsistent statements—Isimite/l scope—EvidenceOrdinance, sa. 154, 155 (c).
Where, at a trial before the Supreme Court, a prosocution witness givesevidence which damages the prosecution case, section 155 (c), read with section154, of the Evidence Ordinance may permit the prosecuting Counsel to proveformer inconsistent statements of the witness. In such a case, however, CrownCounsel’s questions must be restricted to contradict the witness in respect onlyof matters concerning which the witness has already given unfavourableevidence. Section 155 cannot be utilised to prove former statements whichmay in advance contradict evidence which the prosecution fears that thewitness may give.
The Queen v. Abilinu Fernando (70 N. L. Ft. 73) followed.
-AlPPEAL against a conviction at a trial before the Supreme Court.
E. R. S. R. Coomaraswamy, with M. D. K. Kulatunga, N. Wijenathan,
Jayawickrema and S. C. Croxsette Thamblnh (assigned), for the accused-appellant.
R, de Fonseka, Senior Crown Counsel, for the Attorney-General.
Cur. cidv. vult.
August 2, 1967. H. N. G. Fernando, C.J.—
This was an appeal from a conviction of the accused at a trial by Juryof the offence of culpable homicide not amounting to murder.
It appears that the prosecution expected to prove at the trial that theaccused, the deceased man, and the witnesses Thegonis and Pinto hadbeen together on the evening of 1st December 1965, that three of thepersons (not including the accused) had shared in the smoking of a ganjacigar, that the accused had complained that he was not given a share ofthe smoke and abused the others on that account, and that shortly afterthis inciden t the accused had stabbed the deceased man with a knife. Inregard to the alleged act of stabbing itself, it would appear that the onlydirect evidence available to the prosecution was the evidence of the witness
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H. N. G. FERNANDO, C.J.—The Queen v. Jaya-singhc
Pinto. In fact Pinto was the first witness whom the prosecution called.In answer to a leading question On this day at about 5 p.m. did you andthe deceased and one Thegonis decide to smoke a ganja cigarette ? ”, thewitness replied : “ Yes Very shortly thereafter, in answer to anotherquestion “ The deceased, this accused, Thegonis and you were the personsto smoke tliis ganja cigarette ? ”, the witness replied : “The accused did notcome there In answer to five other leading questions, the witnessrepeatedly denied that the accused had come to the spot or been in thecompany of the other three men. Thereafter the learned Crown Counselasked the following question :—
£f 24. Q. Did you see at any stage the accused coming and picking aquarrel with the deceased about not getting his share of the ganjacigarette ?
A. No. ”
At this stage Crown Counsel applied to examine the witness under theprovisions of s. 154 of the Evidence Ordinance, and this was allowedby the learned trial Judge.
The further examination of the witness by the Crown Counsel was suchthat the deposition of the witness in the Magistrate’s Court was read tohim, and that the witness admitted that the sentences thus read to himhad in fact constituted his evidence before the Magistrate. One suchadmission of the "witness was that he had stated to the Magistrate that theaccused had in fact been present when the other three men smoked thecigar. But, at a very early stage of this further examination, the witnessrepeatedly said that the accused did not come to the place where theothers were smoking the ganja cigar, and in answer to Question No. 44 thewitness said that his different statement to the Magistrate had been a lie.I reproduce a few of the subsequent Questions and Answers :—
rc 47. Q. The accused asked Egonis for his share of the ganja as healso contributed ?
A. Yes, I said so.
Q. Is that also incorrect ?
A. That is not correct. It is a lie.
Q. ‘ I waited there
A. That is correct.
Q. ‘ The accused then started abusing the deceased because hisshare of the ganja was not kept for him ’.
A. Yes, I said so. That is also a lie.
Q. What you have done is to tell the Magistrate bits of truth andchunks of lies ?
A. Yes.
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Q. Did you say : “ I saw the accused and the deceased veryclearly by the boutique lights ” ?
A. I said so but it is false.
Q. “I saw the accused stabbing the deceased ”, did you say that ?
A. I said so but it is false.
Q. The deceased was holding his chest and came up to the boutiqueand fell down ?
A. I said so but it is false.
Q. I saw the accused going towards his house ?
A. I said so but it is false. ”
The situation which arose at the very commencement of this trial wasalmost precisely that which was anticipated in one of the concludingparagraphs of the recent judgment of this Court in The Queen v. Fernando(C. C. A. Appeal No. 17 of 1967 delivered on 18th April 1967 *). Butneither the trial Judge nor Counsel were then aware of that unreportedjudgment. What actually occurred in the present case was that, becausethe witness Pinto stated at the trial that the accused had never been in thecompany of the persons who were smoking the ganja cigar, evidencewas led which made the Jury aware that, in his deposition to the Magis-trate, the witness had not only alleged that the accused was present, buthad further testified directly to the facts that the accused did commit theoffence charged, and also that he had some motive against the deceasedman.
No doubt the witness had damaged the prosecution case by his evidencethat the accused had not been present at all ; the prospective damagewould have been clear to Crown Counsel, who expected that his other■witness Thegonis would testify to the presence of the accused during thesmoking of the cigar. This damage of course the prosecution was quiteentitled to repair by proving that the witness Pinto had in the Magistrate’sCourt stated that the accused had been present, and proof of that formerstatement was sufficient and necessary to discredit the witness and toinvite the Jury to disregard his denial of the accused’s presence.
The complaint of Counsel for the accused relates mainly to the QuestionNo. 47 and the subsequent questions which I have reproduced above.Prior to that stage, there had been one, and only one, statement whichneeded contradiction, and it was contradicted. But after that stage thewitness did not at the trial give any direct testimony relevant to thecommission of the offence charged. For instance, he did not say that theaccused did not abuse the others, and thus there was no occasion for theprosecution to prove a former statement inconsistent with his evidence.The same observation has to be made with regard to the much moreimportant Question No. 63. 1
1 (1967) 70 N. L. R, 73.
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Again, the prosecution proved the whole of the statement which thewitness Pinto had made to the Police, including statements that theaccused had been after liquor, and that the witness himself feared theaccused ; this although the witness had not testified at the trial that theaccused had been sober, or that he did not fear the accused.
Thus (apart from the one matter as to the accused not being present),s. 155 of the Evidence Ordinance was utilized, not to contradicttestimony given at the trial, but to prove former statements which mightin advance contradict evidence which the prosecution feared that thewitness might give. If a witness has given some testimony at a trial,then s. 155 (c), read with s. 154, may permit proof of a former inconsistentstatement; but s. 155 (c) does not in law authorise the slaying of phantomdragons.
We must add that Crown Counsel was not even entitled to ask QuestionNo. 24 without the permission of the trial Judge, because at that stages. 154 had not yet being invoked. When Counsel is examining his ownwitness, and hence not relying on s. 154, it is contrary to common sense,and not only to law, to ask whether X did something on a particularoccasion if the witness has already vehemently denied X’s presence onthat occasion.
In effect, the attempt on the part of the prosecution to discredit itsown witness had the consequence that a number of former statements -were proved which could well have satisfied the Jury of the guilt of theaccused, although in law they were completely irrelevant as evidence ofhis guilt. The learned trial Judge quite properly directed the Jury thatthese statements must not be taken into account against the accused ;but, having regard to the gravely incriminatory nature of the statements,we cannot think with any confidence that the Judge’s warning must havebeen heeded by the Jury.
The ideal criminal trial is one at which the prosecution leads onlyevidence which is relevant and admissible in proof of the offence charged,and at which there is accordingly no occasion to instruct the Jury torepress the natural human tendency to take account of all the mattersproved in evidence. One major instance in which such an instruction isinevitable is a case where tv’o or more persons are charged together, and aconfession by one of them is proved. That exception to the ideal ispermitted by our procedure, subject to the discretion of a Court to orderseparate trials. Another exception arises under s. 155 (c) of the EvidenceOrdinance, but it is ordinarily the defence which utilises the section. Inthis case, the prosecution purported to utilize the section, but did soillegally ; hence the major part of the Crown’s examination elicitedevidence which was not legally admissible.
Learned Senior Crown Counsel has submitted that it is the duty of theprosecution to make its best efforts to induce a witness to speak the truth.The argument, in its application in the present context, presupposes
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that if a witness gives evidence exculpating an accused person, thenthe evidence must be untrue. The argument seems also to be opposed tothe presumption of innocence, for evidence exculpating an accused personcan be thought to be false only because of a supposition that the accusedmust be guilty.
Learned Senior Crown Counsel made a respectful but somewhatprovocative enquiry as to what questions are in our opinion permissibleunder s. 154 of the Evidence Ordinance, if the limitations mentionedin the recent judgment of this Court and those discussed at the hearingof this appeal are applicable. An answer to his inquiry, if givenin this appeal, would be merely obiter, for the recent judgment, and theone now pronounced, deal only with matters provable under s. 155 (c)of the Evidence Ordinance. But Counsel is no doubt aware that researchinto the scope and effect of s. 154 must involve consideration also ofs. 155 (a), (6) and (d), s. 140, s. 143, s. 145, s. 146, ss. 147 and 132, s. 148,8. 149, s. 150, s. 153, and perhaps of other sections of the EvidenceOrdinance. The fruits of such research will presumably be available ifand when the occasion arises for this Court to construe any of thesesections as read with s. 154.
Before leaving the matters discussed, we should note that a situationsuch as that which arose at a very early stage of this trial can sometimesbe retrieved if the trial Judge in his discretion seeks fit to intervene, or ifthe prosecutor utilises s. 154 otherwise than in the manner provided bys. 155 (c). Eor example, a general reference to the fact that the Court isaware of former statements made by the witness, or a suggestion thatthe witness may have some reason to conceal facts within his knowledge,occasionally serves to “ soften up ” an unwilling witness. But it isclear that any such treatment would have had no response in the case ofthe witness Pinto.
Evidence of the following matters was adduced by the prosecution inthis case :—
Thegonis stated at the trial that the accused had been present atthe smoking party, and had abused the others because he was notgiven a share of the smoke.
Thegonis also stated that, shortly after the smoking party dispersed*the accused had borrowed a clasp knife from him.
The deceased man was found stabbed and lying a little distanceaway from the scene of the smoking.
The deceased man had made a statement to the Doctor at thehospital that he had been stabbed by the accused.
The most weighty of the circumstances listed above is a statementmade to the Doctor. But much of its value is reduced by the fact that*only a few minutes earlier, the deceased had stated to the Apothecarythat he had fallen in a paddy field and injured himself. The Apothecaryhad also noticed that the deceased man was smelling of liquor. Havingregard to the contradictory nature of these two statements of the deceased
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man, it is difficult for us to understand why the Jury should havepreferred to accept the statement made to the Doctor as being true inpreference to the statement made to the Apothecary. We thought it quitelikely that the preference of the Jury was influenced by their knowledge ofthe evidence which has been given by the witness Pinto in the JV?agistrate’sCourt and which, as we have held, should not have being led at the trial.In these circumstances, we did not think this to be a fit case in which toorder a fresh trial.
For these reasons we allowed the appeal and directed a verdict ofacquittal be entered.
Accused acquitted.