061-NLR-NLR-V-67-THE-QUEEN-v-K.-A.-PIYADASA.pdf
[In the Court op Criminal Appeal]
Present: Sansoni, C.J. (President), Tambiah, J.,and Sri Skanda Rajah, J.THE QUEEN v. K. A. PIYADASAAppeal No. 145 op 1964, with Application No. 163S. O. 53—M. G. Matara, 12456
Criminal procedure—False evidence given by a witness—-Order of Court to keep thewitness in Fiscal's custody—Effect—Criminal Procedure Code, s. 440.
Ia a trial before the Supreme Court an eye-witness P, who was called bythe prosecution, admitted that portions of the statement which he had madeto the Police were false. At the end of his re-examination, and before twoother eye-witnesses K and N wore called, the trial Judge addressing himsaid, “ You will stand down and remain in Fiscal’s custody. I shall dealwith you thereafter ”. He was in Fiscal’s custody until the conclusion of thetrial.
Held, that the treatment meted out to witness P was premature, and thatthe witnesses K and N might have been influenced thereby when it came totheir turn to give evidence.
Appeal against a conviction in a trial before the Supreme Court.
T. W. Rajaratnam, with J. Peri Sunderam and R. Bodinagoda(Assigned), for Accused-Appellant.
R.Abeysuriya, Crown Counsel, for the Crown.
Gur. adv. wit.
May 10, 1965. Sansoni, C.J.—
We now give our reasons for the order made by us on April 12, 1965,whereby we set aside the conviction of murder and substituted aconviction of culpable homicide not amounting to murder.
The case for the prosecution was that on the day in question a peraherahad been organised by the Young Men’s Buddhist Association ofKamburupitiya, which was to start at 2 p.m. from the KamburupitiyaPolice Station and go to the Wilegoda Temple. The deceased man, whowas to act the part of a tiger in the perahera, was rehearsing his perfor-mance near the bus stand at Kamburupitiya at about 1.30 p.m. Atthat time the accused was said to have stabbed the deceased with a pointedknife in an entirely unprovoked attack. The medical evidence showedthat the deceased received four incised wounds, two of which werenecessarily fatal.
LXvii—21
2R 8880—1,855 (10/85)
Every witness called for the prosecution was cross-examined in aneffort to show that, far from the accused going up to the deceased andstabbing him on the tarred surface of the road without any warning orreason, it was the deceased who went up to the accused while the latterwas standing on the edge of the road amongst a crowd of spectators.Another point sought to be made by the defence was that the deceasedhit the accused with his hands more than once, and that the accusedthen retaliated by stabbing the deceased.
The first witness, Kodikara Arachchige Robert, in the course of cross-examination gave the following evidence :—
“ Q. You saw the deceased practising this tiger performance ?
A. Yes.
Q. You saw him leaping forward just before the stabbing ?
A. Yes.
Q. He jumped forward and went in the direction of the accusedwho was standing in the crowd ?
A. Yes.
Q. You saw the accused standing in the same way as the otherspectators in that crowd watching that performance ?
A. Yes. ”
Later on he said :—
“ Q. And did you see the deceased chasing the accused towardsthe public latrine from the tarred road ?
A. Yes ”.
The witness denied, however, that the deceased dealt blows on theaccused.
The next prosecution eye-witness was Wanni Achchige Piyadasa.He gave no support, either in evidence in chief or in the earlier part ofhis cross-examination, to the defence suggestions that the deceasedhad been the aggressor. He maintained at that stage that the accusedcame out from between two cars, and stabbed the deceased while thelatter was going towards the Police Station. But defending counselat a certain stage elicited the following evidence :—
“ Q. Did you or did you not see the deceased deal a fewr blows onthis accused ?
A. I saw 2 or 3 blows being dealt by the deceased on the accused. ”
The presiding Judge then asked : “ When was that ? ” and the witnessreplied, “ When the accused was near the two cars. ” After furtherquestions by defending counsel, the learned Judge took over the question-ing. In the course of 34 questions and answers the wdtness said inplain terms that the deceased went up to the accused and struck himtwo or three blows before the accused stabbed him with the knife. Theseanswers were undoubtedly helpful to the defence.
Tike learned Judge partly nullified the effect of them by reading outto the witness, sentence by sentence, the statement which he had madeto the Police shortly after the incident. The witness accepted that hehad said some of the things which appeared in that statement, butdenied the rest. He also explained that he made some false statementsto the Police because one Jothipala Nanayakkara, the President of theY. M. B. A., and others asked him not to tell the Police that the deceasedhad assaulted the accused.
Before the Court adjourned for the day, Crown Counsel made ailapplication under Section 154 of the Evidence Ordinance, for permissionto cross-examine this witness. The learned Judge, who reserved hisorder for the following day, refused the application on the ground thatthe witness had already admitted that what he told the Police wasfalse. The witness was also remanded to Fiscal’s custody before theCourt adjourned that day, and he was in Fiscal’s custody until theconclusion of the trial. At the end of his re-examination, the learnedJudge addressing him said : “ You will stand down and remain in Fiscal’scustody. I shall deal with you thereafter. ”
There were two other eye-witnesses called by the prosecution, Dharma-dasa Kodikara, a brother of the first prosecution witness Robert, andJothipala Nanayakkara already referred to. The former admittedthat he had been convicted of possessing ganja; his brother Robert saidthat Dharmasasa had also been convicted of selling arrack illicitly.Jothipala Nanayakkara admitted that he was sentenced to 4f yearsimprisonment on being convicted of looting during the communal riots :he was fortunate enough to be released from jail after he had served only2 months and 6 days of his sentence. Both these witnesses denied thedefence suggestion that the deceased had assaulted the accused beforethe accused used the knife. But the defence established that all thewitnesses had shown, as the place where the stabbing occurred, a spotinside a car park and not on the tarred surface of the road.
The accused himself gave evidence and said that he had been struckby the deceased 4 or 5 times before he took a knife, which he had in thewaist, and stabbed the deceased with it.
In this state of the evidence, it was plainly a questwa of fact for thejury to decide whether the admitted stabbing by the accused wasunprovoked or not. In arriving at their decision on this question, thejury would naturally have had to decide whether there had been anykind of assault by the deceased prior to the stabbing.
The first witness, Robert, went part of the way with the defence whenhe said under cross-examination that he saw the deceased leaping forwardin the direction of the accused who was standing in the crowd, just beforethe stabbing. Though he did not admit having seen any blows beingdealt on the accused, he said he saw the deceased chasing the accusedfrom the tarred road towards the public latrine.
The witness Piyadasa’s evidence had to be considered very carefullyby the jury. While it is true that he made a different statement to thePolice from the statement he made in evidence, it was for the jury aloneto decide how much of his evidence they should accept or reject. Ifthey chose to accept his evidence, the accused could not have beenconvicted of murder.
The complaint made to us at the hearing of this appeal was that thejury were hampered in coming to a free and independent decision bycertain words and actions of the learned Judge. It was submitted thatthe learned Judge should not have remanded the witness to Fiscal’scustody while he was giving evidence; nor should he, in the presenceof the jury, have remanded the witness to Fiscal’s custody, or told himthat he would be dealt with later at the end of his evidence ; by doing sohe unmistakably indicated his opinion of the witness’s evidence. Thatopinion was also expressed in strong terms in the course of his summing-upwhere the learned judge said:—
“Now, gentlemen, when W. A. Piyadasa is described as a self-confessed liar it is a correct description. You remember he got into thewitness box and admitted that what he told the police was false andthat what he told the Magistrate was false. So that from his ownmouth he has admitted that he has not spoken the truth. Well,gentlemen, although he has admitted that he has not spoken thetruth in his statement to the police or in his evidence before the MataraMagistrate, it is still your duty to consider his evidence like the evidenceof any other witness. If, for instance, you think that at this laststage, he has come out with the truth and says, “In fact, this is whathappened”, you can act on that evidence, but, Gentlemen, havingregard to his testimony, you have to ask yourselves the question whetheryou can accept any portion of his evidence, whether he is a witnesson whose testimony you can place any reliance. Those are mattersentirely for you, Gentlemen of the Jury, to determine.”
Though he did finally leave the matter to the Jury, he condemned thewitness in such strong terms, and dealt with him in so drastic a fashion,that we think the Jury would have felt bound to reject the witness’sevidence.
We think it would have been better if the learned Judge had followedthe views expressed by De Sampayo J. in Cooray v. The Ceylon ParaRubber Co. Ltd1. De Sampayo J. said this :“ The proceeding has, however,a serious aspect about which I wish to add a word. The appellant wasdealt with for contempt of Court, while he was still under examinationand before the conclusion of the case of the defendant company whichhad called him. In my opinion, a proceeding such as this is apt tointimidate the witness with regard to the rest of his evidence, and otherwitnesses who are still to be called, and generally to prejudice the courseof justice. Section 440 of the Criminal Procedure Code no doubt providesthat it shall be lawful for the Court to sentence a witness ‘summarily
1 (1922) 23 N. L. R. 321 at 326.
But that expression refers not to the time at which a witness shouldbe dealt with, but to the nature of the proceedings. I think it shouldbe laid down, as a general rule, that the proper time for dealing with awitness under section 440 is after the conclusion of his own evidenceand after the close of the case of the party who calls him, or of the wholecase if the completion of the trial is likely to render more apparent thefalsehood of any statement.’* In this case, it is possible that the witnessesDharmadasa Kodikara and Jothipala Nanayakkara might have beeninfluenced, when it came to their turn to give evidence, by the treatmentmeted out to Wanni Achchige Piyadasa.
In dealing with the evidence of Kodikara Aratchchige Robert, thelearned Judge, no doubt unintentionally, omitted to tell the jury thatthe witness did admit, though perhaps reluctantly, that he saw the de-ceased chasing the accused from the tarred road just before this stabbing.On this point, the witness made a concession which the defence wasable to extract from him, and it would have been better if the learnedJudge had mentioned this in his summing-up.
In all the circumstances we felt that the Jury may well hare convictedthe accused of culpable homicide not amounting to murder, if the evidencewhich supported the defence of grave and sudden provocation had beenfairly submitted for their consideration.
CoTwiotion mitered.