THE QUEEN v. V. P. JULIS and two others

108-NLR-NLR-V-65-THE-QUEEN-v.-V.-P.-JULIS-and-two-others.pdf


The. Queen v. Julia
505
s^_
[1st the Court of Crmeial Appear]
1963 Present: Basnayake, C.J. (President), Weerasooriya, S.P.J., andH. N. G. Fernando, J.THE QUEEN v. V. P. JULIS and two othersAppeals Nos. 253 to 255, with Applicatiom Nos. 264 to 266of 1961S. G. 123—M. 0. Gampaha, 51787(AEvidence—Identification parade—Witness's former statement relating to identi-
fication of accused—Admissibility at trial—“ Authority legally competent to
investigate the fact ”—Evidence Ordinance, ss. 9, 155, 157.
Under section 157 of the Evidence Ordinance a former statement made by awitness identifying an accused at an identification parade is relevant as corrobo-ration of any evidence to the like effect given by the witness at the trialof the accused, provided that the statement was made before “ an authoritylegally competent to investigate the fact ” other than an officer investigatingunder Chapter XU of the Criminal Procedure Code.
A person who is delegated by a Magistrate to hold an identification paradeis not “ an authority legally competent to investigate the fact ” within themeaning of section 157 of the Evidence Ordinance.
Evidence—False evidence given by witness on a material point—Can the rest of his
evidence be accepted as true ?—Applicability of maxim falsus in uno,
falsus in omnibus.
In a prosecution for robbery and certain other offences, the only evidenceagainst the 1st, 4th and 5th accused was that of two alleged eye-witnesseswho stated that the three accused took part in the robbery. At the conclusionof the evidence of the first eye-witness, and before the second eye-witness wascalled, Crown Counsel applied under section 217 (3) of the Criminal ProcedureCode to withdraw the indictment against the 1st accused on the ground that theevidence of these two witnesses (father and son) as to what the 1st accused didcould not be accepted as true because they failed to mention his name to anyof the neighbours who turned up after the robbery as one of those who tookpart in the robbery, and also because the first witness had a motive for falselyimplicating the 1st accused. The application of Crown Counsel was allowedby the trial Judge and the 1 st accused was discharged.
Held, that, by falsely implicating the 1st accused, the two witnesses gavefalse evidence on a material point. Applying the maxim falsus in uno, falsusin omnibus (He who speaks falsely on one point will speak falsely upon all), theirevidence implicating the 4th and 5th accused should also be rejected. Whensuch evidence is given by witnesses, the question whether other portions of theirevidence can be accepted as true should not be resolved in their favourunless there is some compelling reason for doing so.
Inspection of scene of offence by Judge and Jury—Procedure—Criminal Procedure
Code, ss. 231 to 233, 235 to 238—Courts Ordinance, ss. 53, 85.
After all the evidence led for the prosecution and the defence was concludedthere was an inspection of the scene of offence and other material places by theJury in the presence of the Judge and Counsel. During the inspection, thewitnesses pointed out various objects and places and demonstrated how certainincidents, including the identification parade, took place.
usv—22
1R 16530—1,855 (2/64)
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BA3HAYAJOS, C.J.—The Queen v. Juli*
Held, by WKEBxsoo&nrA, SJPJ., and H. N. G. Fekkaoto, J. (Bashayajcs, C-J.dissenting), that there was no legal objection to the Jury having been shownthe various places, objects and matters. The only irregularity of wlrisb *ajjr
notice could be taken was that the questions put to the witnesses and the replies
they gave took the form of evidence recorded at the inspection, instead of thewitnesses being re called in Court after the inspection was concluded and theirevidence recorded aa to what took place at the inspection, which is the procedurenormally adopted. Section 238 of the Criminal Procedure Code does notauthorise the recording of evidence at the scene of the offence or other placesviewed by the Jury. The irregularity, however, did not cause material prejudiceto the accused so as to vitiate the trial. Most of the evidence recorded at thescene was in respect of matters which had already been deposed to by thewitnesses when they gave evidence earlier in Court.
Appeals against three convictions in a trial before the SupremeCourt.
K. Shanmugalingam, for 2nd Accused-Appellant.
Neville Wijercdne (assigned) for 2nd, 4th and 5th Accused-Appellants.
Colvin E. de Silva, -with Prins Rajasooriya and 3. E. P. Cooray,for 5th Accused-Appellant.
S. S. Wijesinha, Crown Counsel, for Attorney-General.
Cur. adv. vult.
November 18, 1963. Baskataxe, C.J.—
Five persons named Senarat Don Saineris Vidana Ralalage Don SainerisGunasekara, Vithana Pathirennebelage Julis, Hapu Arachchige Hara-manis alias Weeraratne, Hetti Arachchige Cyril Tissera alias Siraalias Sirisena and Kalu Arachchige Wilson Perera were indicted oncharges of being members of an unlawful assembly whose commonobjects were house-breaking and robbery, and of using violence inprosecution of the common object of committing house-breaking androbbery. They were also charged with jointly committing house-breakingand robbery independently of the charges involving membership of anunlawful assembly. On the following motion of prosecuting counsel madein the course of the prosecution case while the first eye-witness was undercross-examination the 1st accused was discharged :—
“ Will Your Lordship permit me under section 217 (3) of the CriminalProcedure Code to withdraw the indictment against the first accused. ”
At the end of the evidence of the witness Sedara learned Crown Counselstated—
“ These are the only witnesses whom I am calling to prove the factsother than the Police witnesses ; I am placing no further evidence otherthan the Police Evidence. ”
and on the following direction of the learned Commissioner—
“ So far there is no evidence against the 3rd accused. You are thesole judges of fact and if there is no evidence against the 3rd accusedI do not know whether you would like to hear the case against the
BASYAYAKE, C.J.—The Queen v. Julie
507
3rd accused any further. If you unanimously decide not to hear the
case against the 3rd accused please tell me, then we can acquit him.
It has to be a unanimous decision. You can consider the matter
here or retire. ”
the jury after retiring for two minutes brought a unanimous verdict ofnot guilty against the 3rd accused. –
The trial of the other accused then proceeded. They neither gave evi-dence nor called witnesses to give evidence on their behalf, and the onlywitness called for by the defence was the Clerk of Assize to prove certainstatements made by the witness Windsor Gunasekara to the Magistrate.The 2nd, 4th and 5th accused were found guilty on counts 1, 2, 3 and 4 ofthe indictment and on the direction of the Commissioner they did Dotreturn a verdict on counts 5 and 6. The accused were sentenced toseparate terms of imprisonment in respect of each of the charges of whichthey were found guilty. Some of them were to run concurrently, othersconsecutively. In the result each of them became liable to undergofifteen years’ rigorous imprisonment.
Shortly the facts are as follows:—Senarath Gunasekara VidaneEalalage Don Thoxnis Gunasekara (hereinafter referred to as Thomis)who lived in the village of Gcdigama Was a wealthy land owner. In hishouse lived his mistress Missie Nona and his son Windsor, a lad fifteenyears of age. On 24th September 1959 his house was broken into and hewas fobbed. It Would appear that Thomis, his mistress and his son were, asleep in the room in which they usually slept. Two bottle lamps werealight in the house, one in the hall and the other in the dining room.Thomis was disturbed by the barking of dogs and in order to investigate thecause he went towards the front door followed by his mistress and son.As he approached the door some one outside said “ Who is that ? ” andalmost immediately after that those outside banged the door and a gunwas fired. Thomis went to his room and armed himself with a mannaknife and as he came out the rear door was forced open by the robberswho rushed in. They snatched the manna knife from his hands and oneof them pressed him against the wall and demanded money. Whenhe said “ The money is in the room ” he was taken into the room. Hegave the robbers a box containing Rs. 2,500. Then one of the robbersbrought the lamp which was in the dining room. Thereafter they robbedhim of the jewellery in the wooden chest in that room. Then two of therobbers brought his son and his mistress into that room and his son wasmade to stand by some bags of paddy in the room and his mistress wasmade to sit down. Next they demanded money from his mistress. Shegave them the money that was in her hand-bag. They demanded moremoney from Thomis and when he said that he had already handed themall his money Saineris the 1st accused, who was not one of those whohad originally rushed in, came up with a gun and placed it against hischest and was preparing to shoot him when his mistress cried out “ SainerisAiya, what is this crime you are going to perpetrate ? ” Saineris thenwithdrew and one of the robbers remarked “ These fellows have more than
508
BASNATAJLE, C.J.—Th» Qmm v. Julis% … — .
fifty thousand rupees and they will hot give the money till the son ®
murdered. Stab him with a knife. " One of the robbers went up to his
son with upraised knife. The son in fear cried “ O father I Give themoney you have ”, Thereupon Thomis offered to hand over the moneyand one of the robbers brought his bunch of keys from tinder his pillow.He opened one of the drawers to get at the secret drawer and as he reachedit one of the robbers pulled it out and took three tins from it containingRs. 13.000. Thereafter the robbers put out the lamp and looked the doorand went away. After about fifteen minutes Thomis unlocked the doorand along with his mistress went to the house of their neighbour Aron,his mistress’s elder brother. It was raining heavily at the time.
Only two of the robbers were identified at the time of the robbery.They were the 1st accused Saineris and the 2nd accused Julis. They werepersons known to the occupants of the house. The former was identifiedby Thomis and Windsor and the latter by the witness Sedera whowas sleeping in the verandah of the house. It is not clear why the pro-secution did not call Missie Hona, a witness whose name was on the backof the indictment, and one of the persons who was robbed that night andwho had an equal opportunity of identifying the robbers as Thomis andWindsor. The 4th and 5tb accused were arrested by the Police on sus-picion on 14th and loth October respectively and were identified by Thomisand Windsor as two of the robbers that entered their house, both at thetrial and earlier at an identification parade held by Police Sergeant,Edirisinghe on 19th October 1959 on the orders of the Magistrate. Thecase against these two accused rests entirely on the identification of themby Thomis and Windsor. The evidence of Thomis as to the identity ofthe 5 th accused is as follows :— .
“279. Q : Did you see him after this incident ?
A: I pointed out that man at the identification parade!
280. Q : So you first saw that man when he went towards your'son with a knife in his upraised hands ?
A: Yes.
2S1. Q : And the next occasion on which you saw him was at the:identification parade when you pointed him out ? V
A : Yes.
Q : Can you point out that person ?
A : He is the fifth accused.
Q : Are you going by the numbers ?
A: Yes. He is the person standing at that corner (pointsout).
2S5. Court: Q : You do not know his name ?
A : Ho. It was only after his name was mentionedin court that I came to know it. ”
Windsor’s evidence as to the identity of the 4th and 5th accused is as:follows :—
“816. Q : Did you see the person who struck you ?
A : I can identify him if seen.**
509
BASMAYAKE, C.J.—The Queen v. Julie
Q : la fact at an identification parade subsequently held did
you identify him ?
A : Yes.
Court: Q : That is the man who hit you on the left shoulder 1
A : Yes.
Court : Let the accused stand up when they are referred to.
Q : You can see the numbers placed against the accused—
2, 3, 4 and 5 ?
A : Yes.
Court: No. 1 is vacant.
Q : By reference to the numbers behind which they are
standing, can you point out the person who struck you 1A : Yes.
Q : What is the number in front of him ?
A : No. 4.
Q : Is he the person who struck you, the fourth accused lA: Yes.
Q : Was that the first occasion on which you had seen him,
the occasion on which he hit you 1A : Yes. .
Q : In between those two occasions, in between the occasion
when you saw him that night and the occasion on whichyou identified him at the identification parade, did yousee the fourth accused ?
A: No.
Q : At any stage were you threatened ? Did anybody
threaten you at any stage ?
A : Yes.
Q : In what manner were you threatened ?
A : A robber came to stab me.
Q : Who ?
A : An unknown person.
Court: Q : Is he here ?
A : Yes.
Q : Can you point him out ?
A : That is the fifth accused.
Q: You said that the fifth accused was a person unknown
to you that night ?
A: Yes.
Q: Did you subsequently identify the fifth accused at an
identification parade ?
A: Yes. ”
-*—B. 16536 »2/04l
a»BASNAYAJTE. Q.^—Tha Queen V.Jttttr
———
’he.evideace of the Police Sergeant as to the idesSfictim of the 4th ttatd'th accused by Thomis and Windsor respectively ie as follows s—
TfeOfflftis
*' 1366. Q : What did you ask this-witness to do ?
A : I informed the witness to point out the persons or personwho entered his house on the night of 24.9. ^>9 and com-mitted robbery and used force on them if any one of themwas in the line.
1367. Q : Then what happened ?
A : Then he carefully examined the line of men and pointed
out the 4th and 5tb accused. ”
Windsor
Thereafter I sent the Court Aratchie to bring witnessWindsor Gunasekera.
After the Court Aratchie was sent did yon ask the sus-pects to change their attire or their places if they wish ?Ye3, and they elected to remain in their same place andin the same attire.
Then was Windsor Gunasekera brought to court 2Yes. Then I informed Windsor Gunasekara to pointout the persons or person who entered their house on thenight of 24.9.59 and committed robbery and used forceon them if anyone of them were in the parade.
Then ?
Then the witness went along the line of men, examinedthe men carefully in the line and pointed out the 4th and5th accused. ”
It is unfortunate that in the instant ease the Magistrate instead ofolding the identification parade himself delegated this important functiono Police Sergeant Edirisinghe. It has resulted in the parade being ofttle use as the meaning of what Thonfis and Windsor did is left in doubt,’hey said nothing at the parade and we are left in uncertainty as to what'■as in their minds at the time they pointed out the two accused. As wasbserved by Lord Moulton in Christie's case “ Identification is an act
f the mind and the primary evidence of what was passing in the mindf a man is his own testimony, where it can be obtained ”. But innewer to the complex direction of the Sergeant each of them pointed outle 4fch and 5th accused. In that state of evidence of identification atle parade leading questions put to the witnesses further impaired theirsddence at the trial. Both Judge and counsel appear to have lost sightt the fact that the identification of accused at a parade held before theial is not substantive evidence at the trial. The fact that the witnessis been able to identify the accused at an identification parade is only arcumstance corroborative of the identification at the trial. The juryay act only on the evidence given before them. There is no section ofte Evidence Ordinance whioh declares proceedings at an identification
‘ 10 Cr. Apj>. R. 141 at 160 H. L.
“ 1374. A :
Q :
A :
Q :
A :
Q :
A :
BASNAYAKE, C.J.—The Queen v. Julie
511
parade to be evidence of the fact of identity. The principal evidence ofidentification is the evidence of a witness given in Court as to how andunder what circumstances he came to pick out a particular accused personand the details of the part which the accused took in the crime in question.The evidence of Thomis at the trial does not go beyond identifying the5th accused as the man who went towards his son with upraised knife.He ascribes no specific act to the 4th accused. Windsor's evidence atthe trial was to the same effect, except that he added that the 4th accusedwas the man who struck him. The learned Commissioner has omitted topoint out to the jury that the evidence of identification, at the parade isnot substantive evidence but a circumstance corroborative of the evidenceof identification in Court. When statements are made at an idmtificationparade, they may be used under section 157 to corroborate the identifyingwitness or under section 155 to contradict him. In the instant case nostatement was made by the witnesses at the parade and therefore noquestion of corroboration under section 157 arises. Even if thewitnesses had made statements indicating what they had in mind whenthey pointed out the two accused those statements would not have beenadmissible for corroborating them as section 157 only permits the useof statements made before an authority legally competent to investigatethe fact. Now Sergeant Edirisinghe was not such an authority. Theauthority contemplated in section 157 is an authority other than anofficer inquiring into an offence under Chapter XU, for, statementsmade to a Police Officer in the course of an inquiry under that Chaptercannot be used to corroborate. There is a long line of Indian decisionson the subject of the evidentiary value of identifications at extra-judicialparades. Some of better known decisions are referred to in thefootnote at the end of this judgment. [His Lordship referred to thefollowing decisions in the footnote :—Binieshri v. King Emperor1 ;Lai Singh v. Emperor 2 ; Regina v. Emperor 3 ; In re Sangiah 4 ”.]
The procedure adopted by the learned Commissioner in the visit tothe place of the alleged crime next calls for consideration. On1st November 1961, the third day of trial, the learned Commissionerstated in Court—
“ I think it is desirable to visit the scene of the incident in thiscase, and I think it would be more convenient to do that after allthe evidence has been led. Shall we fix it for tomorrow morning10 o’clock ? Will that suit you gentlemen. 1 ”
To this question the Foreman said “ Yes ”. On 3rd November, (thetranscript does not show what happened on 2nd November), after thecase for the prosecution and the defence had been closed, the Commis-sioner, the jury, counsel, the witnesses, the accused and the Court staff
1 (1927) A I. R. Allahabad 163.3 (1921) A. 1. R. Allahabad 215.
3 (1925) A. I. R. Lahore 19■4 (1948) A. I. R. Madras 113.
f
512
BASNAYAKB, C.J—~Pha Quean v. Julie
visited the house of Themis. There the Commissioner first wnuninffllon oath the witnesses Sedara, Police Inspector Dhanapala Weeraaooriya,Thomis, and the photographer Jinapala Jayasnriya. The Ommnisakmer
recalled and questioned the witnesses X>hanapala Weerasooriya twice,Sedara twice, and Thotnis nine times. The transcript contains thefollowing minutes regarding the movements of the Commissioner :—
(а)“ 11.25 ci.m. Court leaves the house of Thomis Gunasekera and
proceeds along the road in front of the house said to be leadingto Aron’s house up to a distance of 75 yards and stops at a
bend.”
At the bend Thomis was examined at length.
(б)“ 11.35 a.m. Court leaves the scene and arrives at the Gampaha
Police Station at 11.55 a.m. (At the Gampaha Police Stationpremises in the front verandah facing the road). ”
There it was that the Commissioner examined Arlis Perera.
“ 12.03 p.m. Court leaves the Gampaha Police Station and arrives-
at Magistrate’s Court, Gampaha, at 12.05 p.m. ”
There the Commissioner examined Arlis Perera once more.
“ Court arrives at the verandah of the Remand Cell. ”
At this place Arlis Perera was examined by the Commissioner for the third!time.
“12.10 p.m. Court leaves the Remand Cell and arrives at the
Magistrate’s Court at 12.12 p.m. ”
There Thomis was examined for the eighth time.
{/) “ Court leaves the Court-house and goes up to the Record Room ofthe Magistrate’s Court. ”
There Thomis was examined for the ninth time.
(?) “Court leaves Magistrate’s Court, Gampaha, at 12.15 p.m. andTeturns to Supreme Court, Negombo. at 1.00 p.m. ”
(A) “ 1.05 p.m. Court re-assembles and adjourns for lunch. ”
The minutes in the transcript do not show where the jury were whilethe Commissioner was moving from place to place, and whether they werein a body under the care of an officer of the Court while the witnesses-were being examined by the Commissioner at the different places bevisited. There is also nothing to indicate that what was said by thewitnesses examined by the Commissioner was heard by each and everyoneof the jurors.
The proceedings at the view occupy seventeen pages of the transcriptand 104 questions were asked from the witnesses who were examined bythe Commissioner. The vast majority of the questions were asked by theCommissioner himself. The procedure adopted by the Commissionerin this case is without precedent and is certainly not authorised bysection 238 of the Criminal Procedure Code which reads—
X
BASNAYAJBLE, C.J.—The Queen v. Julia
0I3.
“ (1) Whenever the Judge thinks that the jury should view the placein which the offence charged is alleged to have been committed or anyother place in which any other transaction material to the trial isalleged to have occurred the Judge shall make an order to that effect;and the jury shall be conducted in a body under the care of an officerof the court to such place which shall be shown to them by a personappointed by the Judge.
(2) Such Officer shall not except with the permission of the Judgesuffer any other person to speak to or hold any communication withany member of the jury ; and unless the court otherwise directs theyshall when the view is finished be immediately conducted back intocourt. ”
The above section provides for the jury being conducted in a bodyunder the care of an officer of the Court to the place in which the offencecharged is alleged to have been committed or any other place in whichany other transaction material to the trial is alleged to have occurredwhich shall be shown to them by a person appointed by the Judge. Asthe enactment expressly provides that the person under whose care thejury axe to be conducted to the scene shall be an officer of Court anddoes not enact a similar requirement in regard to the person whom theJudge should appoint to show the jury the place, any person acquaintedwith the place may be so appointed. The section does not providefor the attendance of the Judge, counsel, witnesses, stenographers orany other officers of the court. Subsection (2) provides that the officerconducting the jury to the place should not permit any person otherthan the one appointed by the Judge to show them the place, to speakto or hold any communication with the jury except when the Judge hasgranted such permission. The section does not empower the Judge tohold an inquiry or investigation in the presence of the jury or record anyevidence. Except when the statute so authorises, proceedings such asthe taking of evidence are not meant to be taken in any place other thanthe Court-house. There is no section of the Criminal Procedure Codeor of any other enactment which provides for the examining of witnesses,the carrying out of experiments, or the making of tests at the placeviewed by the jury as has been done in the instant case.
Apart from the fact that the Commissioner has by examining witnessesand taking evidence and as it were holding a sitting of the Court actedillegally, he has also failed to take the imperative precautions prescribedin the section. An order that the jury should view the scene of thecrime as required by subsection (1) of section 238 has not been made.The order contemplated therein is a formal order giving the reasons forit and not a bare minute or record as in the instant case. He has alsoomitted to appoint an officer of the Court under whose care the jury hadto he conducted to the view, nor did he appoint a person to show thejury the place. All these are imperative requirements of the statutewhich the Judge is bound to observe and are conditions precedent to aview by the jury. The presence of the presiding Judge at the view does
514
BASNAYA&E, C.OT.—The Q^sm *, Julie «•
not cure the breach of the statute. The previous decisions of this Courtin the case of Seginav.JD.M. Ariktss. Per&u1 aad The Queen t>. B. JZ .AladtoPalso emphasise that the jury may view the scene of an offence only withinthe limits of section 238. The dicta of the Privy Council in Karannat v.The Queen3 and Tameskwar and another v. Reginam4 should be read subjectto the provisions of our Courts Ordinance, the Criminal Prooeduxe Codeand the Evidence Ordinance. In delivering the decision of the Boardin the latter case Lord Denning said—
“ In England it is a rare thing for a jury in a criminal trial to viewthe place where the crime is said to have taken place. At one time itwas never done at the assizes except with the consent of the prosecution.But in a case in 1847 on a trial for rape, the defence wished the juryto have a view, in order to support the contention that it was so publica place that it was unlikely for the offence to have taken place there.The prosecution did not consent, but nevertheless the Judge alloweda view. It was regarded as a thing of such moment that the jury wereaccompanied by the under sheriff, the chief constable, 20 policemenand 12 javelin men ; hut the Judge apparently did not go with them.Nor did the prisoner. It is to be noticed that there were no witnesses[See Reg. v. WhaUey (1847) 2 Car. & K. 376], Such a view is on a parwith the common case where a thing is too large or cumbrous tobring into court but is left in the yard outside. It is everyday practicefor the jury in such a case to be taken to see the thing. The Judgesometimes goes with them. Sometimes he goes by himself. Butthere are no witnesses and no demonstration. Their Lordships seenothing wrong in a simple view of that kind, even though a Judge isnot present. ”
Our section seeks to provide for just that kind of view referred to inthe words of Lord Denning. In Regina v. Arthur Perera (supra) thisCourt, while affirming that the kind of view contemplated by our sectionwas a view pure and simple with no demonstrations, refused to set asidea conviction on the ground that there had been a demonstration by theInspector standing at a window of the house viewed and inserting his-hand through the grille. In the later case of The Queen v. Aladin (supra)this Court, while disapproving of the course adopted by counsel in seekingto place evidence before the jury at the view in the absence of the Judge,made certain observations obiter which indicate that what may not bedone in the absence of the Judge may be done if the Judge is present.Those observations must be treated as made per incuriam in thelight of what has emerged from a reconsideration of the whole question.A view ordered under section 23S is not a part of the trial for the reasonthat persons whose presence is essential to a trial such as the Judge, theaccused and the respective counsel are not required to be present. Noris there power conferred thereunder to compel the accused and witnessesto attend. That being the case, the opinion expressed by the PrivyCouncil in the British Guiana cases of Tameshwar (supra) and Karwnat
1 (1956) 57 N. L. B. 313.* (1953) A. 0. 2{.6.
* (1959) 61 N. L. B. 7.* (1957) A^C7. 476.
BASNAYAEJB, C.J.—The Queen v. Julie
515
(supra) that a view is a part of the trial does not apply to a view unddrsection- 238. If it is not a part of the trial, proceedings such as demonstra-tions and the examination of witnesses cannot be properly taken at a view1even if the Judge chooses to attend the view himself. For his presencecannot convert what under the Code is not a part of the trial to a sittingof the Court. In The King v. Seneviratne 1 the Privy Council, while notseeking to interpret the express words of section 238, said—
“. Section 238 of the Criminal Procedure Code (No. 15 of
1898) provides for a view by the jury and lays down definite and strictconditions for its conduct. Section 165 of the Evidence Ordinanceprovides for the Judge asking questions at any time of any witness.The proceedings on June 8, 1934, seem to have been a combinationof a view and a further hearing with the introduction of some featurespermitted by neither procedure, such as the performance of an ex-periment with chloroform by a Dr. Pieris, who does not appear to havebeen sworn as a witness, the Judge and the foreman of the jury beingsomewhere else. The jurors seem also to have been divided for thepurpose of other experiments in sight and sound and to have beenasked questions as to the impressions produced on their senses. TheirLordships have no desire to limit the proper exercise of discretion orto say that no view by a jury can include an inspection or demonstrationof relevant sounds or smells ; but they feel bound to record theirview that there were features in the proceedings of June 8 which wereirregular in themselves and unnecessary for the administration ofjustice. ”
Some of the above observations which are obiter appear to go beyondthe ambit of section 238.
Under our legal system where both the adjective and substantivecriminal law are codified the Judge in a trial by jury is not entitled totravel outside the statute and devise a procedure unwarranted by it.The Evidence Ordinance provides certain methods of testing the credi-bility of a witness. Testing the truth of evidence given at a trial bydirecting demonstrations, experiments and tests is not authorised by anystatute. Besides, it is no part of the presiding Judge’s function to directthe carrying out of experiments or tests for the purpose of ascertainingwhether the witnesses have spoken the truth or not. A Judge should-guard himself against appearing to assume the role of investigator.Chapter XX which lays down the procedure to be followed at trialsbefore the Supreme Court prescribes the respective functions and duties,of the Judge, the jury, the prosecution and the defence. There is afurther objection to demonstrations, tests and experiments at a viewby the jury. In terms of section 231 of the Criminal Procedure Code,upon being sworn, the jury are in every case admonished by the Registrarthat it is their duty to listen to the evidence and upon that evidence tofind by their verdict whether or not the accused is guilty of the charge-or any of the charges, if more than one, laid against him in the indictment.
1 (1936) 33 N. L. R. 203.
BASNAYAKB, O.J.—(pha Qt<#snv. Julu
316
The evidence is the evidence which is referred to in the succeedingsections 232, 233, 235, 236 and 237. Evidence is defined in theEvidence Ordinance thus—
‘ Evidence ’ means and mchades—
(а)all statements which the court permits or requires to be made
before it by witnesses in relation to matters of fact underinquiry; such afcatments are called oral evidence.
(б)all documents produced for the inspection of the court; such
documents ate called documentary evidence. ’’
In view of section 5 of the Evidence Ordinance, evidence may be givenof the existence or non-existence of every fact in issue and of such otherfacts as are declared to be relevant and of no others. Evidence ofexperiments may not be given except by experts when they are con-ducted by them for the purpose of supporting or explaining their opinionswhich are declared to be relevant by section 45 of the Evidence Ordin-ance. Nothing should therefore be done or said at the view by anyonewhich the jury are to take into account in deciding the case. The factthat the Commissioner has questioned the witnesses many times andasked them many questions calls fox notice. Even in proceedings inCourt the power conferred by section 165 to ask questions is not unres-tricted and in view of the proviso thereto it is even doubtful whetherit is meant to be used in trials by jury. But assuming that its use isnot confined to trials by Judge alone the power conferred by the sectionis :i in order to discover or to obtain proper proof of relevant factsTesting the veracity of witnesses is not obtaining proper proof of relevantfacts or discovering relevant facts. Apart from that where in a jury■trial the presiding Judge asks questions about facts which are irrelevant,he is, in view of the proviso to that section bound to warn the jury againstbasing their verdict on any facts which are not declared by the Ordinanceto be relevant. The proviso which reads, “ Provided that the judgmentmust be based upon facts declared by this Ordinance to be relevant andduly proved ”, makes it necessary that the power conferred by section 165should be exercised in trials by jury with great care ; because in certaincircumstances no amount of caution can wipe out the harm done byirrelevant matter being placed before the jury.
It is not clear whether the learned Commissioner had in mind section429 of the Criminal Procedure Code when he recalled and re-examinedwitnesses who had given evidence and even examined a witness who hadnot given evidence previously. If he did, he appears to have lost rightof its terms. That section reads—
“ Any court may at any stage of an inquiry, trial, or other proceedingunder this Code summon any person as a witness or examine any personin attendance though not summoned as a witness or recall and re-examine any person already examined; and the court shall summonand examine or recall and re-examine any such parson if his evidenceappears to it essential to the just decision of the case. ”
The expression " proceeding ” particularly in view of the preceding word41 other ” must be construed ejnsdem generis with inquiry find trial.
BASNAYAJxE, C.J.—The Queen v. Julia
517
As has been pointed out above, a view by the jury under section 238is not a stage of “ an inquiry , trial or other proceeding under this CodeIt is the “ Court ” that is given the right to summon, examine and re-examine witnesses. The Judge who chooses to attend the view by thejury cannot be properly described as the Court. The expression“ Court ” in that section does not mean the Judge wherever he mayhappen to be. It can only mean the Judge sitting in the Court-houseexercising the judicial duties of his office. That expression is not definedin the Criminal Procedure Code, but it is defined in the Courts Ordinanceand reads as follows :—
“ ‘ Court ’ shall denote a Judge empowered by law to act judiciallyalone, or a body of Judges empowered by law to act judicially as abody, when such Judge or body of Judges is acting judicially; ”
When the Commissioner decided to attend the view by jury, thoughunder no legal obligation to do so, he had no power to exercise hisfunctions and duties as presiding Judge at that place. His presence atthe scene can only be warranted on the ground that he is there for thepurpose of seeing for himself what the jury were to be shown. For,otherwise, he would be under the disadvantage of not having seen whatthe jury had viewed.
Sections 165 of the Evidence Ordinance and 429 of the Criminal Pro-cedure Code therefore afford no authority for summoning and examiningor re-examining witnesses at a view of the scene and the Commissioner'saction was illegal. This aspect of sections 165 and 429 was not examined•in the judgment in Aladin’s case [supra), and the following observationsin that case must be regarded as made per incuriam :—
“ We wish to guard ourselves against what we have said abovebeing understood to mean that at a view of the scene witnesses cannotbe asked to demonstrate or explain something which needs explanationor take up certain positions which they say they occupied at the timethe crime was committed. Witnesses can be asked to give demonstra-tions or explanations but such demonstration and explanation mustbe given in the presence of the Judge and jury. How essential it isthat the Judge should he present at a view is emphasised not only inTameshwar's -case but also in the case of Karamat [supra) whereLord Goddard in dismissing the appeal to the Privy Council said—
* Here everything was done in the presence of the Judge, whothroughout was in control of the proceedings. It was eminentlydesirable that he should be present, and it is possible that, had henot been, a different result would have followed.'
At a view directions to witnesses and other questions if any to themshould come from Judge and not from the jury or counsel; but it isopen to counsel or the jury to suggest them to the Judge so that hemay decide whether a particular direction should be given orquestion askefi.11
518
JBASNAYAJSE, C.Qmm v, JvMa
Both Koroma?8 case and Tamtshwar'g cas& ■ (supra) proceed on theassumption that in British Guiana the Gore:* eaa be bald at any placeviewed by the jury and that if witnesses give demonstrations or answerquestions the view becomes a part of the trial and that if the Judge is-present demonstrations may be given or questions asked. But our Jawis different. A Judge of the Supreme Court holding criminal sessions ofthe Supreme Court may hold such sessions only in a public buildingappointed for the purpose which ail persons have a right to enter in orderfreely to attend the sessions. There are two farther reasons for holding,that a view by the jury cannot be regarded as a part of the trial or aproceeding of the Court. The first is that the holding of criminal sessionsof the Supreme Court outside the precincts of the building appointedfor the purpose is not warranted by the Courts Ordinance or any otherenactment. Magistrates alone are under oar law authorised to sit atany convenient spot (s. 53 Courts Ordinance). It is well-established thatwhat is nob warranted by law is illegal (Smurthxvaitz v. Eannay 1).This principle applies with greater force in a system where the law iscodified. The second is that section 85 of the Courts Ordinance requiresthat the sittings of every Court within Ceylon shall be public, and allpersons may freely attend the same. The place at which an offence hasbeen committed is generally not a place to which all persons can befreely admitted. To hold a sitting of the Court at such a place would heobnoxious to section 85.
In the instant case the visit to the scene was after the prosecution anddefence had closed their respective cases. By itself there seems to be noobjection to a view at the end of the case. The section imposes norestriction on the stage of a trial at which the view may take place. Nohard and fast rule can be observed but a view should not be ordered at astage when it would not be in the interests of justice so to do. Butwhen evidence is recorded after the defence is closed the accused axe at adisadvantage when the further evidence taken touches aspects of thecase which they were not called upon to meet at the time when theyentered on their defence. The evidence taken by the Commissionerbrought out new matter which the prosecution had not brought out.What happened in the instant case can aptly be described in the words ofThe King v. Seneviratne as “a combination of a view and a furtherhearing with the introduction of some features permitted by neitherprocedure. ”
One more question remains for consideration, and that is whether thelearned Commissioner’s direction that although Thomie and Windsorwere admittedly implicating Saineris falsely, it was still open to the juryto act on their evidence against the 4th and 5th accused. His chargeon this point reads :—
“ On the other hand you will also take into consideration the evidenceof Thomis and his son Windsor, that they saw the first accused, Saineris,who ia a relation of theirs, with a gun inside the house. Is it likely
1 [I8$4) A. C. 494 ai <.01,*
519
BASNA YAKE, C.J.—The Queen o. Julia
U
that Saineris, who was well-known to them, even if he organised such arobbery, is it likely that he would have gone about showing his face ?If Saineris and his son gave false evidence on that point
Croton Counsel: Thomis.
Court: I am sorry. Did I say Saineris ?
Croton Counsel: Yes.
Charge to the Jury continued: I am very sorry. You will have totake that into consideration. The defence suggestion is that a manwho is capable of implicating somebody else, a man who is capable ofimplicating the first accused falsely, may be implicating the otheraccused also falsely. That is a matter to which you will give the dueconsideration. On the other hand, it would be still open to you tosay that Thomis and his son, Windsor, had a motive to implicate falselythe first accused but they do not have a motive to implicate the otheraccused falsely. They may have suspected Thomis—they may havesuspected Saineris as having been a party to this burglary becauseof the ill-feeling that existed between them and they may haveimplicated Saineris for that reason, but have they any reasonto implicate any one of these other accused falsely ? Therefore, youmay be disposed to reject their evidence impheating the first accusedon that account but to accept tbe rest of the evidence, or you may asI told you earlier consider that that taint3 the whole of the evidence,you may consider this of such vital importance, and reject the restof the evidence. It is open to yon to do either. ”
Falsus in uno, falsus in omnibus or Falsum in uno falsum in omnibus,both forms are in use, (he who speaks falsely on one point will speakfalsely upon all) is a well-known maxim. In applying this maxim itmust be remembered that all falsehood is not deliberate. Errors ofmemory, faulty observation or lack of skill in observation upon anypoint or points, exaggeration, or mere embroidery or embellishment,must be distinguished from deliberate falsehood. Nor does it apply tocases of conflict of testimony on the same point between differentwitnesses. In Baksh v. The Queen 1 the Privy Council in applying thismaxim to a case of co-accused in a case from British Guiana said, “ Theircredibility cannot be treated as divisible and accepted against one andrejected against the other.” In the instant case there are no circum-stances which exclude the application of the maxim and as the soletestimony against the accused is that of these two witnesses, the learnedCommissioner’s direction that it was open to them to act on the evidenceof Thomis and Windsor against the 4th and 5th accused is contrary to themaxim. There is nothing that distinguishes their testimony against the4th and 5th accused from their perjured testimony against the 1st accused.When the only evidence on which the jury are told they may act isthe evidence of admitted perjurers whose testimony even the prosecutiondoes not hold out as true against one accused, it would be wrong for them
1 (P. C.) {1958) A. C. 167 at 172.
520
WEBRASOORIYA. S-FX-The Queen «. Jtrti*
to convict tiie other accused on the testimony of the perjurers nukesthere is something positive which dietingxnsbee the case of the others.In a ease such as the on® before us the proper direction is that it is notopen to them to convict on the testimony of the witnesses whom theprosecution itself had admitted were witnesses who had falsely implicatedthe 1st accused. The illegalities above referred to are, in my opinion,fatal to the conviction of all the appellants.
In view of the importance of the questions of law that arise for decisionin this case I have thought it fit that separate judgments should bepronounced.
WSEEASOOErVA, S.P.J.—The three appellants were convicted on charges of (o) being membersof an unlawful assembly the common objects of which were to commithousebreaking and robbery, (6) using violence in prosecution of the saidcommon objects, and (c) committing housebreaking and robbery in prose-cution of the said common objects, offences punishable under sections140, 144 and 443 and 380, read with Section 146, of the Penal Code.They were sentenced to various terms of imprisonment and have filedthese appeals and applications against their convictions and sentences.
The appellants, who were the 2nd, 4th and -5th accused at the trial,were jointly tried with the 1st and the 3rd accused- The case for theprosecution, shortly, is that they, along with others unknown, brokeinto the house of one Don Thomis Gunasekera on the night of the24th September, 1959, and committed robbery of cash and articles valued atRs. 17,530. At the time of the entry Don Thomis Gunasekera, his mistressMissi Nona and their son Don Windsor were sleeping in a bedroomin the house while Seaera, a servant, was sleeping in the front verandah.The prosecution called as witnesses at the trial all these persons exceptMissi Nona.
The 1st accused is an illegitimate son of a brother of Don ThomisGunasekera, and according to the latter, when the robber's were demandingmoney and jewellery from him and Missi Nona, the 1st accused enteredthe room armed with a gun which he placed against the chest of DonThomis, but when Missi Nona remonstrated at this the 1st accuseddesisted from further participation in the robbery and left the scene.Don Thomis stated that after the 1st accused went away one of therobbers remarked “ These fellows have more than fifty thousand rupeesand they will not give the money till the son is murdered. Stab himwith a knife ”, and then the 5th accused (the 3rd appellant) who at thetime was a stranger but whom he subsequently identified at an identi-fication parade held in the Magistrate’s Court of Qamp&ha, went upwith knife upraised towards Don Windsor, who appealed to his fatherto give the robbers the money they wanted. Don Thomis stated, further,that at the identification parade he also indentified the 4th accused (the2nd appellant) as one of the robbers, but in examination-in-chief he didnot assign to the 4th accused the doing of any specific ac£ It was elicited
WEERASOORIYA, S.P.J.-cI’Ae Queen v. Julis
521
from Don Thomis in cross-examination that at the time of the house-breaking and robbery he was not well-disposed towards the 1st accusedas a result of a dispute over the possession of a field called Delgahakum-bure and that a case which he had filed against the 1st accused charginghim with criminal trespass in having entered that field was pending.
At the conclusion of the evidence of Don Thomis Gunasekera, who wascalled before Don Windsor and Sedera, Crown Counsel applied underSection 217 (3) of the Criminal Procedure Code to withdraw the indictmentagainst the 1st accused. Crown Counsel stated that although therewas other evidence against the 1st accused—he was referring to theevidence of Don Windsor whom he had not yet called—he did not thinkthat such evidence would take the case against the 1st accused anyfurther. The application of Crown Counsel- was allowed by the trialJudge and the 1st accused was discharged. Notwithstanding the evi-dence of Don Thomis Gunasekera implicating the 1st accused, and thatevidence of a similar nature was expected from Don Windsor, the mainconsideration which moved Crown Counsel to make, and the trial Judgeto allow, this application appears to have been that the evidence of thesetwo witnesses as to what the 1st accused did could not be accepted astrue seeing that they failed to mention his name to any of the neighbours 'who turned up soon after the robbery as one of those who took part in it,and also that Don Thomis Gunasekera had a motive for falselyimplicating the 1st accused.
Don Windsor on being called stated in exannnation-in-chief that amongthe robbers who entered the house were the 4th accused, who gave him ablow on the back of the left shoulder, and the oth accused, who tried tostab him, that he had not seen either of them before and that hesubsequently identified them at the identification parade. This witnesswas not questioned by Crown Counsel about the 1st accused, but incross-examination he gave evidence on the same lines as Don ThomisGunasekera against the 1st accused.
Sedera said that when he was sleeping in the verandah a crowd ofpersons rushed in, he asked “ who is that 1 ” and then he was given ablow and held against the wall by the 2nd accused (the 1st appellant)and kept there, while the others went away from the verandah. The2nd accused continued to hold him against the wall for about quarterof an hour and he was then ordered to sit down and the mat on which hewas sleeping was placed over his head and he was told to remain thereand that he would be murdered if he raised cries. Sedera says that aftera few minutes, realising that he was alone, he removed the mat from hishead and ran away and hid himself in a ditch. After some time he wentinto the kitchen of Don Thomis’ house and there he saw Don Thomisseated on a bench and bewailing his loss. He also saw Aron Singho, abrother of Missi Nona, and several others who had come there after therobbers went away. He told Aron that Julis (the 2nd accused)assaulted him and that as a result he had a split lip. Sedera said that
62 2
WEBRASOORIYA. S.P.J.—jr&j (Ju^h v. Ju1m
he knew the 2nd accused for about foor to five years, and that the2nd accused lived on a land adjoining the redding land of Don ThomisGunasekera.
Aron confirmed that Sedera told him that he had been held down endassaulted by Jnlis and that he noticed a bleeding injury on Sedera’s lip.Aron also stated that he went to the Police Station and gave informationof what happened, including what Sedera told him, and that the onlyperson among the robbers whom he mentioned as having been identifiedwas Julis. A certified copy of the statement made by Aron was pro-duced marked PlO by the Police officer who recorded it.
After Aron had given evidence, Crown Counsel informed the Courtthat the only other evidence he proposed to call was the evidence of certainpolice officers. So far no evidence had been led against the 3rd accused,and on the direction of the trial Judge, the Jury brought in a verdict ofnot guilty in his favour and he was acquitted. The trial then proceededagainst the 2nd, 4th and 5th accused (the appellants), with the resultalready stated.
The Police arrested the 4th and 5th accused on the 14th and 15thOctober, 1959, respectively. The nature of the information leading totheir arrest has not been disclosed in evidence, but it was not in conse-quence of any description of the robbers given by Don Thomis Gunasekeraor other inmates of his house. Thereafter an identification parade washeld in the Magistrate’s Court on the 19th October, 1959, by PoliceSergeant Edirisinghe, acting on the orders of the Magistrate. The 4thand 5th accused were lined up in this parade along with 12 others.Sergeant Edirisinghe requested Don Thomis and Don Windsor, as eachof them was brought into Court, to point out the person or persons whocame on the night of the 24th September, 1959, and committed therobbery and used force on them, and each of them pointed out to the 4thand 5th accused. The case against the 4th and 5th accused rests entirelyon the fact that they were identified at this parade by Don Thomis andDon Windsor and on the evidence testifying to that fact given at thetrial by these witnesses and Sergeant Edirisinghe.
One of the grounds formulated in the applications for leave to appealfiled by the appellants is that the verdict of the Jury is unreasonableand cannot be supported by the evidence. This ground involves thequestion whether the Jury should have acted on the evidence of DonThomas Gunasekera and Don Windsor that the 4th and 5th accusedwere two of the persons who took part in the robbery, when, in movingto withdraw tbe indictment against the 1st accused, the Crown badvirtually conceded that the same two witnesses were not worthy of creditin regard to their evidence implicating the 1st accused. In GardirisAppu v. The King1 this Court had occasion to make the following observa-tions as to the courses open to a Jury where false evidence had beenintroduced into a case by the prosecution witnesses: “ In such a casethe jury can do one of two things. It is open to them to say that the
1 (1951) 52 N. L. B. 344.
WEERASOORIYA, S.P.J.—The Queen v. Julia
523
falsehoods are of such magnitude as to taint the whole case for thepxosecution and that they feel it would be unsafe to convict at all. Onthe other hand, it is equally open to them, if they think fit to do so, toseparate the falsehoods from the truth and to found their verdict on theevidence which they accept to be the truth In the present case theseobservations were repeated almost verbatim by the learned trial Judgein the course of his charge to the Jury, but no directions were givento them regarding the test to be applied in deciding what portion, if any,of the evidence of Don Thomis Gunasekera and Don Windsor againstthe 4th and 5th accused could he accepted as representing the truth,once their evidence against the 1st accused has been rejected as false.
In The Queen v. VeUasamy & Others1 it was held that the evidenceof a witness which is unacceptable in respect of one offence cannotreasonably afford good ground for convicting the accused of anotheroffence. The charge in that case was one of murder. The Jury foundthe accused not guilty of that offence but guilty of the offence of causingdisappearance of evidence of the commission of homicide. For proof-of either offence the prosecution relied on the evidence of one and the samewitness. The verdict of the Jury finding the accused guilty of theoffence of causing disappearance of evidence of the commission ofhomicide had necessarily to he based on an acceptance of a part, if notthe entirety, of the evidence of this witness, whom the Jury had,presumably, disbelieved when they found the accused not guilty of theoffence of murder. The conviction of the accused was, accordingly,quashed and judgment of acquittal entered.
Another case which is relevant to the question under consideration isBaksh v. The Queen2 decided by the Judicial Committee of the PrivyCouncil and referred to in the judgment of this Court in The Queen v.VeUasamy and Others (supra). In that case two persons, Nabi Bakshand Fiaz Baksh, were convicted of murder. The case for the prosecutionwas that the deceased man was killed one night by shots from a gunfired by one or other of the accused acting together in furtherance of acommon intention. The defence of each accused was an alibi. Thecase against the accused rested largely on their identification by threewitnesses, two of whom, according to the statements made by themto the police, which the Court of Criminal Appeal permitted to beproduced at the hearing of the appeals preferred by the accused againsttheir convictions, had not spoken to having seen Nabi Baksh at all.These statements had not been produced at the trial. The Court ofCriminal Appeal dismissed the appeal of Fiaz Baksh but allowed theappeal of Nabi Baksh and ordered a new trial in his case. Subsequentlythe Crown entered a nolle prosequi in respect of Nabi Baksh. FiazBaksh appealed by special leave to Her Majesty in Council. The PrivyCouncil allowed the appeal and remitted the case to the Court of CriminalAppeal with a direction that the Court should quash the conviction andeither enter a verdict of acquittal or order a new trial, whichever course 1
1 (1960) 63 N. L. X. 266.
1 (1958.) 4 C- J67.
f>24
WEERASOOEITA, S-P.J.—T/w Qvem t. Julis
the Court may consider proper in the interests of justice. The PrivyCouncil also made the following observations regarding the two witnesseswho had faded to refer to the presence of Nabi Bahah in their statementsbo the Police: “ Their credibility cannot be treated as divisible andaccepted against one and rejected against the other. Their honestyhaving been shown to be open to question, it cannot be right to acceptthe verdict against one and re-open it in the case of the other. TheirLordships are accordingly of the opinion that a new trial should havebeen ordered in both cases
Despite the above observations, the direction given by the PrivyCouncil would imply that had the Court of Criminal Appeal consideredit proper to order a new trial of the accused Fiaz Baksh. it was open tothe Jury at the new trial to find him guilty of the offence of murder onthe testimony of the same three witnesses who claimed to have identifiedhim, notwithstanding that the veracity of at least two of them in regardto their evidence identifying Nabi Baksh was gravely suspect, and thateven in the case of the remaining witness, the Crown, apparently, wasnot prepared to put him forward as worthy of credit when he purportedto have identified Nabi Baksh.
The maxim falsus in uno, fahus in omnibus, is not an absolute rulewhich has to be applied without exception in every case where a witnessis shown to have given false evidence on a material point. But whensuch evidence is given by a witness, the question whether other portionsof his evidence can be accepted as true should not be resolved in his favourunless there is some compelling reason for doing so. In the present case. the most that can be urged for accepting the evidence of Don ThomisGunasekera and Don Windsor implicating the 4th and 5th accused isthat each of them in turn picked out these two accused from among thoselined up in the identification parade as two of the robbers. It is in evi-dence that the Gampaha Police Station is just by the road leading fromthe Remand G'ell to the Bailway Station and that the 4th and 5th accused,after being remanded to Fiscals custody, had been taken on foot alongthis road to the Railway Station to be sent to Colombo. Don Windsorstated in the Magistrate’s Court that he had been to the Police Stationseven or eight times after the commission of the robbery, but at the trialhe said that he had been there only twice and that he could not rememberhaving stated in the Magistrate’s Court that he had gone there seven oreight times. On the day on which the identification parade was heldthe 4th and 5th accused were brought from. Colombo in a covered van,first to the Remand Cell and then to the Magistrate’s Court. The paradewas held only at about 4.15 p.m. but, for a reason which is unexplained,both Don Thomis Gunasekera and Don Windsor had been kept at thePolice Station from 1 a.m. till 4 p.m. These items of evidence wereelicited by the defence as supporting the suggestion that prior to theidentification parade the two witnesses had either been shown the4th and 5th accused, or been given such particulars relating to them aswould have facilitated their identification at the parade. *
WEERASOORIYA, S.P.J.—The Queen v. Julia
525
Evidence relating to the identification of an accused at an identificationparade by a witness who is subsequently called at the trial and givesevidence implicating that accused would be relevant tinder section 9 ofthe Evidence Ordinance as a fact establishing the identity of a personwhose identity is relevant. The evidence of Sergeant Edirisinghe thatEon Tbomis Gunasekera and Don Windsor each identified the 4th and5th accused at the parade was therefore admissible evidence. But suchevidence does not go very far towards showing that the evidence givenby Don Thomis Gunasekera and Don Windsor against the 4th and 5thaccused at the trial is true even though the defence failed to establishthat the identification was brought about in the manner suggested byit. Neither Don Thomis Gunasekera nor Don Windsor was able to giveto the Police a description of the robbers which tallied in any way withthe 4th or 5th accused. Even with regard to what these accused did atthe time of the robbery the evidence of the two witnesses is contradictory.Don Thomis at first said that the 4th accused did not do anything inparticular, while the 5th accused went up with a knife upraised towardsDon Windsor. According to Don Windsor, the 4th accused struck him ablow with the hand on the back of his shoulder, and the 5th accusedtried to stab him. Subsequently Don Thomis, when cross-examined as towhether he had not stated in the Magistrate’s Court that the person whotried to stab Don Windsor was the 4th accused, admitted having said soand adopted that evidence as correct.
Apart from evidence relating to the identification of an accused by awitness at an identification parade being relevant under section 9 of theEvidence Ordinance, where the witness’s identification amounts toa statement that the person identified is the person who committedthe offence in question, and the statement is made before “ an authoritylegally competent to investigate the fact ”, such statement would also berelevant under section 157 of the Evidence Ordinance as corroborationof any evidence to the like effect given by the witness at the trial of theperson identified. In the present case the identification parade havingbeen held by Sergeant Edirisinghe, the question arises whether he was“ an authority legally competent to investigate the fact ”, vis., theidentity of the persons concerned in the commission of the housebreakingand robbery. It is not claimed for Sergeant Edirisinghe that in holdingthe identification parade he was conducting an investigation underChapter SET of the Criminal Procedure Code. If he was holding such aninvestigation, the special provisions of section 122 (3) in Chapter NTTwould preclude the use, as corroboration under Section 157 of the EvidenceOrdinance, of any statement made to him by Don Thomis Gunasekeraor Don Windsor relating to the identity of the 4th and 5th accused.
Was Sergeant Edirisinghe “ an authority legally competent to investi-gate the fact ” by virtue of the orders given to him by the Magistrateto hold the identification parade ? Assuming that the powers conferredon a Magistrate by the Criminal Procedure Cede are wide enough to makehim legally competent to investigate the identity of the person or personsconcerned in the commission of an offence, by holding an identification
526
WBERASOQUrSTA, SJPX—The Queen *. Julie
parade, such powers cannot bo delegated by him to another. It wouldfollow, therefore, that in bolding the identification parade SergeantEdineinghe was not ''an authority legally competent to investigate
the fact ” and any statements made to him by Don Thomis Gunasekeraor Don Windsor at the identification parade that the 4th and 5th accusedwere two of the robbers who entered their house on the night of the 24thSeptember, 1959, are not admissible under section 157 of the EvidenceOrdinance. Hence, any corroboration of the evidence of Don Thomis andDon Windsor at the trial that woold have been available had their. statements been admissible under Section 157 is not forthcoming in thisinstance. In regard, however, to such statements, even if admissibleunder section 157, it may be observed that there is ample authority thatthey are not “ corroboration ” in the true sense of the term, for “ corrobo-ration must be extraneous to the witness who is to be corroborated ”—per Lord Hewart, O.J., in Rax v. Whitehead1. See, also, the case ofThe King v. AtuJcorale *, where it was held that at the trial of an accusedcharged with rape, the particulars of the complaint made to the policeby the prosecutrix shortly after the alleged offence, though admissibleunder section 157 of the Evidence Ordinance, is not corroboration of herevidence.
For the foregoing reasons we are of the opinion that the verdict ofthe Jury convicting the 4th and 5th accused (the 2nd and 3rd appellantsrespectively) on the evidence of Don Thomis Gunasekera andDon Windsor is unreasonable. The convictions of these appellants areaccordingly quashed and they are acquitted.
There remains for consideration the case of the 2nd accused (the 1stappellant). His complicity in the offence of which he was convictedrests on the evidence of Sedera, and not on the evidence of Don ThomisGunasekera or Don Windsor. Although Sedera was subjected to cross-examination at some length with a view to showing that he had reasonto give false evidence against the 2nd accused, nothing tangible waselicited as a result of it. Sedera mentioned the name of the 2nd accusedwithout delay to those, including Aron, who came soon after the robbersleft the scene of the crime. Moreover, the 2nd accused was wellknown to Sedera, and the circumstances in which Sedera says he identi-fied him leave no room to think that this may be a case of mistakenidentity.
Submissions were addressed to us by counsel for the 2nd accused,and also by counsel for the 5fch accused, that the trial was vitiated bycertain irregularities and illegalities connected with the inspection ofthe scene and other places by the Jury in the presence of the Judge andcounsel after all the evidence led for the prosecution and the defencewas. concluded. The first place inspected was the house of Don ThomisGunasekera. There the witness Sedera was asked to point out wherehe was sleeping and also where he hid himself. Don Thomis Gunasekerademonstrated the composition of the walls of his house, and pointedout various objects and places in the house already referred to in his1 (1920) 1 K. B. D. 99.1 (1848) 50 B. L. R.'2S6.
WEERASOORIYA, S.P.J.—The Queen v. Julis
527
evidence. 'Se was questioned about the gap between tbe two shuttersof the rear door when they were closed, seme additional locks which hehad fitted to the door after the robbery and about the houses in theneighbourhood which had figured in the evidence. He indicated thedirection in which each of them stood. The Assistant Superintendentof Police, Mr. Weerasooriya, pointed out the place in the frame of thefront door where a shot alleged to have been fired by the robbers hadstruck, and was also questioned about the condition of the shutters ofthe rear door at the time when he first arrived at the scene. The photo-grapher, Mr. Jayasuriya, was asked to locate some of the objects shownin the photographs taken by him and produced at the trial, and thevarious angles from which the photographs were takeD.
The next place inspected was the road opposite the Gampaha PoliceStation. The witness Arlis Perera, who at the relevant time was theofficer-in-charge of the Fiscal’s Remand Cell at Gampaha, indicated inwhich direction along the road the Remand' Cell and the Railway Stationwere situated. At the Remand Cell itself, Arlis Perera was questionedas to what parts of the Magistrate’s Court, which is a little further away,could be seen by a person who was in the Remand Cell. At the Magis-trate’s Court, Don Thomis Gunasekera showed from which side of theCourt house he was brought into the well of the Court where the identi-fication parade was held, and the place upstairs where he and DonWindsor were taken after they had, in turn, identified the 4th and 5thaccused at the parade. Each of the witnesses mentioned was questionedon affirmation by the Court, and in some instances by Crown Counseland Counsel for the accused as well.
The scope of section 238 of the Criminal Procedure Code, whichprovides for a view by the Jury of the scene of the offence or othermaterial place, was considered by the Privy Counsel in The King v.Seneviratne1. While certain aspects of the view of the scene whichtook place in the course of the trial in that case were criticised by theirLordships, they stated that they had “ no desire to limit the properexercise of discretion or to say that no view by a jury can include aninspection or demonstration of relevant sounds and smells ”. In themore recent case of Regina v. Arthur Perera there was an inspection ofthe scene at which a police officer demonstrated how it was possiblefor a person of the height of the accused to have stood outside thewindow of a bedroom and, by introducing his hand through the grille,have shot the deceased with a pistol while the latter was in a particularpart of the room. This Court held that the demonstration was notobnoxious to the provisions of section 238 of the Criminal Procedure Code.
The majority of us can see no legal objection to the Jury having inthe present case been shown the various places, objects and matters towhich their attention was specially directed in the course of the inspection,as already briefly set out in the preceding paragraphs. The onlyirregularity of which any notice need be taken is that the questionsput to the witnesses and the replies they gave, took the form of evidence1 (1036) 38 If. 208.3 (1356) 57 N. L. R. 313.
52SWEBRASOORIYA, SJP.J.—The Qvetn v.JttUa
recorded at the inspection, instead of the witnesses being re-called inCourt after the inspection was concluded and their evidence recordedas to what took place at the inspection, which is the procedure normallyadopted. Section 238 of the Criminal Procedure Code does not authorisethe recording of evidence at the scene of the offence or other placesviewed by the Jury. The majority of us do not consider, however,that the irregularity is such as to vitiate the trial, or that it resulted inmaterial prejudice to the 2nd accused. Most of the evidence recordedat the scene was in respect of matters which had already been deposedto by the witnesses concerned when they gave evidence earlier in Court.
The indictment on which the appellants were tried consisted of sixcounts. When the Jury returned their verdict finding the appellantsguilty on Counts 1 to 4, which had been framed on the basis thatthere was an unlawful assembly, the Court directed the Jury not toreturn a verdict on the 5th and 6th counts, which contained charges ofhouse-breaking (section 443) and robbery (section 3S0), respectively,read with section 32, of the Penal Code. The sentence imposed onCount 3 was five years rigorous imprisonment, to run concurrentlywith the sentences of six months rigorous imprisonment on Count 1and two years rigorous imprisonment on Count 2, but consecutivelywith the sentence of ten years rigorous imprisonment on Count 4, i.e.,15 years in all. In view of our order acquitting the 2nd and 3rd appel-lants, it is doubtful whether on the evidence it has been establishedthat the number of persons who took part in the house-hrealdng androbbery comprised the minimum number of five required to constitutean unlawful assembly.
The verdict finding the 1st appellant (the 2nd accused) guilty onCounts 1 to 4 of the indictment shows that the Jury were satisfied ofthe following facts—(a) that the 1st appellant was a member of anunlawful assembly the common objects of which were housebreakingand robbery, and (b) that in furtherance of those objects he was presentat the scene of the crime, in which he took an active part by tying upthe witness Sedera, while the other members of the assembly entered-the bouse of Don Thomis and committed the offences of housebreakingand robbery. On these facts the 1st appellant would be guilty of thecharges laid against him in Counts 5 and 6 of the indictment. Actingunder Section 6 (2) of the Court of Criminal Appeal Ordinance (Cap. 7),we, therefore, substitute for the verdict of the Jury against the 1stappellant a verdict of guilty on Counts 5 and 6 and pass a sentence offive years rigorous imprisonment on Count 5 and a sentence of tenyears rigorous imprisonment on Count 6, the sentences to run con-secutively, that is fifteen years rigorous imprisonment in all. Butunder section 15 (3) of the same Ordinance we direct that the timeduring which the 1st appellant has been specially treated as an appellantin terms of that section shall count as part of the term of imprisonmentunder the sentence passed on him.
Verdict against 2nd accused-appellant altered.
4th and 5th accused^appeUants acquitigd,