ABRAHAMS C.J.—VandenDriesen v. Houtoa Umma.
1937Present: Abrahams CJ.
VANDENDRIESEN v. HOUWA UMMA
P. C. Kandy, 51,644.
Criminal procedure—Reception of evidence after close of prosecution—Identifica-tion of accused—Proper method to be followed.
Evidence for the prosecution should not be taken after the case for thtprosecution has been closed when such evidence would have the effecteither of filling the gap left in the evidence or resolving some doubt infavour of the prosecution.
Identification of an arrested person must be carried out in such a way'that not only must the identifying witness be given every reasonablechance of being right; but must also be given every reasonable chance ofbeing wrong.
^ PPEAL from a conviction by the Police Magistrate of Kandy.
Gratiaen, for accused, appellant.
Pulle, C.C., for the Crown.
August 4, 1937. Abrahams C.J—
The appellant was convicted by the Police Magistrate, Kandy, onNovember 20 last year for the offence of having in her possession onMay 18, 1936, 1,286 grains of opium without having obtained a licence,in breach of section 74 (5) (a) of Ordinance No. 17 of 1929 as amended byOrdinance No. 43 of 1935. She was fined Rs. 500 or in default six weeks’simple imprisonment- The Magistrate believed that he was inflictingthe maximum fine which is in fact Rs. 1,000. This was a first offence.The Magistrate ordered half of the fine to be paid to the Police RewardsFund-'
It was alleged by the prosecution that on May 18 last year Sub-Inspector VandenDriesen, Police Sergeant Ratnam, Police SergeantMarso, Police Constables Silva and Mohideen, went into a -house in Kingstreet, Kandy, owned by one Idroos. Presumably in anticipation ofdiscovering illicitly possessed drugs in the premises, some of the policeentered from the front and the others went round to the back. As entry •was effected, a woman was seen to run through the house towards theback and to throw something she had in her hand on to the roof. Thiswas found to be a packet containing 1,286 grains of opium. The womanwas detained and the police officers proceeded to search the house withno further result. Idroos, who was in the house, was then arrested andtaken to the Police Station, but the Sub-Inspector left the woman in thehouse as he thought she was pregnant and was in too delicate healthto be further troubled. She gave her naime as Maideen Beebee, and thepolice accepted Idroos as surety for her appearance- Idroos was broughtup a few days later, but the police were unable to find any woman calledMaideen Beebee until September 8, when a woman of that name appearedand said that she was not the woman who was found in the house, andthis denial the police accepted. No further action was recorded untilNovember 20, 1936, when Police Sergeant Ratnam wept to Gampola andarrested the appellant who is the wife of one Abdul Hamid, and the
6(SABRAHAMS C.J.—VtxndenDriesen v. Houwa Untma.
sister-in-law of Idroos. The Police Sergeant said that when he "enteredher house she bolted'-and took shelter in a house some distance away,and was subsequently surrendered by the residents in the house. Sheand Idroos were brought up for trial on January 20, i.e., seven and halfmonths after the alleged offence. It was manifest at an early stage ofthe evidence of the first witness that there was no case against Idroos,and it is a little difficult to see why he was ever put on his trial. TheMagistrate then and there discharged him. Sub-Inspector VandenDriesen purported to identify the appellant as the woman who was in thehouse. Police Sergeant Ratnam said that he identified her when hearrested her at Gampola, and P. C Mohideen seems to have identifiedher by necessary inference from his evidence. The evidence of thesethree witnesses was the only evidence brought up against the appellant.She gave evidence on her own behalf and completely denied that she was’the woman concerned when the house was raided. She admitted her'relationship to Idroos but said that she never went to his house withoutbeing accompanied by her husband. She said that she had only onechild who was seven years old. She also denied that she ran away whenPolice Sergeant Ratnam entered her house in Gampola. Her husbandalso gave evidence and supported his wife’s statement that she never leftGampola unaccompanied by him.
During the evidence of the Sub-Inspector the proctor for the appellantcross-examined him with a view to showing that in a previous drug casehe had been disbelieved by the Court. The questions were disallowedby the learned Police Magistrate who gives no reason for this actionwhich was certainly unjustified, as the questions were obviously intendedto go to the credibility of a witness, and the credibility of a police officerhas no greater sanctity than that of any other witness. The onlylimitations on this form of cross-examination are those imposed bysections 149, 151, 152, and 153 of the Evidence Ordinance. It is notnecessary, in view of what-1 am about to say in regard to the othermerits of the case, to discuss what bearing the disallowance of thesequestions might have had upon the learned Police Magistrate’s decision.
At the close of the case for the defence, the Magistrate recorded thathe was visiting the seene of the offence the next day, and directed theSub-Inspector,- Police Sergeant Ratnam, and Police Constable Mohideen_ to be present. There is nothing on the record to indicate that theappellant or his proctor was invited to be on the spot to witness thefurther proceedings that were to be carried-out. The learned Magistrate' directed, the police officers to reproduce certain of their activities in theraid and actually timed the movements of Police Constable Mohideen,recording his opinion that they seemed to bear out what he said he haddone on the day of the raid. This seems to me to have been a greatirregularity. It has been said more than once in this Court that evidencefor the prosecution should not be taken after the case for the prosecutionhas been closed,- when such evidence will have the effect either of fillingin a gap left in the evidence or resolving some doubt in favour of theprosecution, but here again I mention this fact rather for the benefitof Magistrates in general than to calculate what bearing it had on theresult of the trial.
ABRAHAMS C.J.—VandenDriesen v. Houwa Umma.
It is obvious that the case against the appellant must stand or fallon the question of identification, and on this the learned Police Magistratesays very little. He says, “ I accept the evidence of the first accused’sidentity. The back compound would have been quite bright „at 5.45 p.m.and as first accused was uncovered, identification would have been easy.It does tell against first accused that she is the sister-in-law of secondaccused Idroos. ” He says later that the first accused was caught redhanded in the act of throwing away these slabs of opium, and that“ I see nothing improbable in her presence in this house and when thesewitnesses identify her on oath I believe them. ” I am compelled to saythat the Magistrate seems to have proceeded on the ground that thefeatures of the woman in the house had been easily discernible on thenight in question, and comes to the conclusion -that because the witnessesidentified on oath a woman whose features had been easily discernibletherefore they must be believed. But it is not only a question of credi-bility, it is also a question of accuracy. Proper identification is alwaysdifficult. It is a matter into which the Court must probe with thegreatest care. The learned Magistrate does not discuss the possibility ofthe witnesses being mistaken after so long a period as is indicated inthese proceedings, although when it is a question of errors made by thepolice officers, in describing the topography of the house raided, he findsan excuse in view of the lapse of time and the unfamiliarity of thewitnesses with the house. It is not even suggested that there was anypeculiarity of feature, form, movement, or voice, that could be pointedout to the Court as a means of identifying the woman after so long a timehad expired. That being so, with all this uncertainty of mind, howcan it be said that the woman was properly identified by Police SergeantRatnam who went to arrest a woman who was obviously suspected ofbeing the woman wanted, or was properly identified by the Sub-Inspectorand Police (Constable Mohideen who merely saw her in Court. Irregularand improper methods of identifying accused persons have more thanonce been the subject of unfavourable comment by the Court of CriminalAppeal in England. In the case of Williams (vol. 8, C. A. R. 84) theCourt quashed a conviction which depended on the identification of aman who was seen by the identifying witness in the Police Station,not having been placed among others. The Court said that the mode_ adopted was not a proper one and the identification could not be saidto have been satisfactory. In the case of John Cartwright (10 C. A. R. 219)the Court said that the prisoner was not put among a number of othermen so that a witness might be able to identify this man as the guiltyman and that it would have been infinitely better had this been done.
It seems to me that this case is stronger in favour of the appellantthan either of the two cases cited. As the identifying witnesses were allpolice officers engaged in a raid, with all credit given for fair-mindedness,they could not be said to be uninterested. I say most emphaticallythat an identification of an arrested person must be carried out in sucha way that not only must the identifying witness be given every reason-'able chance of being right but must also be given every reasonablechance of being wrong. This identification was all one way. The factalso that the appellant was the sister-in-law of Idroqg. seems to have .
Che lliah Piltai v. Devadasan.
helped the Magistrate towards. a conclusion unfavourable to her, butthat fact could only have any weight if the identification had beenreliable. In this case any female relation of Idroos might have beencharged for the same reason. On the matter of identification alone theappellant is in my opinion entitled to succeed, but there is anotherdefect in the trial which calls for some comment. The defence wascompletely ignored in the judgment. It is elementary that the defencemust always be considered, and must be considered in this way, namely,that it is sufficient if the accused without absolutely convincing theMagistrate of his innocence does enough to produce a reasonable doubtof his guilt. The appellant denied her presence, denied that she wasthe woman wanted, said that she was 25 years of age, whereas the Sub-Inspector said that the woman in the house was a young girl, and shesaid that she only had one child who was 7 years of age whereas theSub-Inspector had believed the woman in the house to be pregnant.She also said that she never left Gampola without her husband, and thisfact was supported by her husband.' On the mere fact that-the womanwas accused of an offence and that her only witness is her husband, thereis no ground for disregarding their evidence completely. If an accusedor the spouse of an accused is to be treated as a merely formal witnessthen the provisions of law made for such persons to give evidence arecompletely stultified.
The trial was completely unsatisfactory. It may have been a difficultcase to prove in any event, but that is no ground for requiring a veryrestricted mode of proof. It is of course thoroughly desirable thatcases of illicit dealing in opium and dangerous drugs should be sternlysuppressed, and that is all the stronger reason for handling these casesin such a way that the public may not have any cause for feeling that theCourts are not impartial or the police are not acting fairly. As was saidby the present Lord Chief Justice of England, it is essential that not onlyshould justice be done but it should appear to be done.
I quash the conviction, and acquit the accused.
VANDENDRIESEN v. HOUWA UMMA