Albert Sintjho v. The Queen
[Court of Criminal Appeal]
Present: Alles, J. (President), Samerawickrame, J., and
W.A. ALBERT SINGHO (alias Piyasena), Appellant, andTHE QUEEN, Respondent
C. C. A. Appeal No. 95 of 1968, with Application No. 1435. C. 100/68—M. G. Avissawella, S2550
ALT.ES, J.—Albert Singho v. The Queen309
Evidence Ordinance—Sections 1S4 and loo—Instance when a party may cross-examinehis own witness—Criminal Procedure Code—Section 225 (b)—Words used inan unusual sense—Duly oj the jury to determine their meaning—Accused'sfailure to give evidence—Whether trial Judge may comment upon it—Summing-up—Questions of fad—Duly of Judge not to give expression instrong language to his personal views.
Defending Counsel may bo permitted under sections 154 and 155 of theEvidence Ordinance to cross-examine a defence witness on his deposition inthe Magistrate's Court when such deposition throws doubts on tho truth ofa prosecution witness.
Under scction'245 (6) of tho Criminal Procedure Codo it is tho duty of thojury to determine tho meaning of words used in an unusual senso. Accordingly,where, in a prosecution for murder, the words of a statement made by thoaccused person to_a prosecution witness aro capable of tho interpretation thatcither tho accused or some other person inflicted tho injuries on the deceased,tho alternative construction of tho words should bo placed before the jury.
In a trial before the Supremo Court tho Judge’s comment on tho failure of theaccused to give evidence should be confined only to those cases in which therearo special circumstances which tho accused only can explain and which callfor on explanation from him. A mere suggestion of tho defence, when a Crownwitness is cross-examined, that the accused was not the assailant but that hoarrived on the scene in order to intervene in tho quarrel between the deceasedand a third party does not justify a comment by tho Court that thcro was anobligation on tho accused to enter the witness box and give an explanationas to how the participants in the quarrel received their injuries.
A Judge must not, in tho course of his summing-up, use language thocumulative effect of which would remove from the consideration of tho jurywhat are essentially questions of fact for their determination.
Appeal against a conviction at a trial before the Supreme Court.
E. R. S. R. Coomarasiuamy, with C. Chakradaran, P. Sivaloganctlhan,Kosala Wijayatilake, S. C. B. Walgampaya and (assigned) B. Bodinagoda,for the accused-appellant.
E. R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
February 10, 19G9. Alles, J.—
The appellant was convicted by the unanimous verdict of the jury ofthe murder of Malta Aratehige Gunasdasa and the attempted murderof his wife A. D. Leelawathie alias Kusumawathie. On the latter count,he was sentenced to 15 3-ears rigorous imprisonment.
According to the case for the prosecution, the appellant and the deceasedGunadasa were labourers employed on Handagala Estate occupyingadjoining line rooms. The deceased was married to Leelawathiealias Kusumawathie (hereinafter called Kusumawathie) 6 months priorto the incident. According to Kusumawathie, about a month prior tothe tragedy, the appellant had come to the line room of the deceased and
ALLES, J.—Albert Sirtgho v. The Queen
attempted to taka liberties with her in the absence of her husband.She informed her husband about this incident. This incident is suggestedas being the motive for the attack on the deceased and his wife by theappellant. According to Kusumawathie, who was the only witness forthe prosecution to the transaction, on the evening in question, she wentto have a bath at the stream, leaving the accused and the deceased inthe line room. When she was preparing to take her bath, she identifiedthe voice of her husband crying out “ Budu Amine ”. She ran in thetile direction of the cries to the compound of the line rooms and saw herhusband lying face downwards and the!accused dealing two blows onhim wiih an iron pipe. When she questioned the appellant, he dealtanother blow on the deceased and thereafter attacked her with thosame weapon. She also saw a tapping knife in the accused’s waist.When she was struck, she fell down unconscious.
Another witness called Somapala says that when lie was in the compoundnear the factory, he saw the appellant coming fast in the direction ofthe Superintendent's bungalow having a tapping knife in his hand.When lie questioned the appellant why he was running the appellanttold him “ One is finished, there is doubt about the other ”. Somapalathen went with the Superintendent to the place where the deceased andKusumawathie lay fallen with injuries and they were thereafterdespatched to the Hospital.
The defence suggested to Kusumawathie that she was having a lovercalled K. D. Somapala and that it was not the appellant who attackedthe deceased but that it was this K. D. Somapala who was responsiblefor the injuries on the deceased and Kusumawathie and that the latterwas giving false evidence to exonerate her lover and implicate the appel-lant. In support of this suggestion, the defence sought to place evidencebefore the jury that when Kusumawathie was taken away from thoscene she said that she knew nothing. This evidence was sought to boled through the defence witness Chandradasa who had stated in thoMagistrate’s Court that when he arrived on tho scene with the Superin-tendent of the Estate he heard Kusumawathie say that she did notknow what happened when she was questioned by Lcelawathio. LearnedCounsel for the appellant submitted that had this evidence been placedbefore the jury they would have had serious doubts about the truth ofKusumawathic’s evidence. This matter was not put to Chandradasain view of tlie Judge’s ruling to which reference is made below, butCounsel for the appellant at the trial, in the absence of tho jury drew theattention of the trial Judge to sections 154 and 155 of the EvidenceAct. The trial Judge then made the following observation :■—
“ If there is any point in the submissions made, I confess I cannotsee any substance in them. Speaking for myself, I reject theapplication. ”
Ono must assume therefore that Counsel did make an application tocross-examine his witness and it would appear to us that the purpose of
ALLES, J.—Albert Singho v. The Queen
tlie application was to throw doubts on the truth of Kusuruawathie’sevidence. We think the learned trial Judge was in errror when heprematurely refused to consider the application of the defence to cross- •examine Chandradasa on his deposition in the Magistrate’s Court. Thiswas a proper application that the defence was entitled to make undersection 154 of the Evidence Act.
There were other matters of substance raised by learned Counsel forthe appellant. Firstly, it was submitted that the trial Judge withdrewfrom the consideration of the jury not only whether the appellant intendedto cause injuries and the injuries so intended were sufficient in the ordinarycourse of nature to cause death, but also deprived the appellant of thepossibility of being convicted for a lesser offence on both counts of theindictment.
The deceased had four external injuries—a stab wound which wentthrough the right check into the cavity, a lacerated wound quarterinch deep over the right cheek, a contusion over the bridge of the nosecausing a fracture of the nasal bone. Of these injuries there was onlyone fatal injury corresponding to the injury to the head which caused adepressed fracture and laceration of the brain and which the Doctordescribed as a necessarily fatal injury. The stab wound was probablycaused with a cutting instrument and the suggestion of the prosecutionwas that it was caused with the tapping knife which Kusumawathienoticed in the appellant’s waist and which Somapala saw in the appellant’shand. On that basis, the appellant used two weapons on the deceased.
K usumawathie only saw the iron pipe being used and therefore theattack with the tapping knife must have been before Kusumawathie’sarrival which the appellant thereafter concealed in the waist or wasused by him after Kusumawathie was injured and fell down. It i3not clear in what circumstances the two weapons were used. The trialJudge appears to have been considerably influenced by the evidence ofSomapala who gave evidencoofthe words uttered by the appellant afterthe transaction was over. In view of the defence suggestion that K. D.Somapala was the assailant, and that the appellant intervened in thequarrel between the deceased and K. D. Somapala, the words utteredmay have indicated that the appellant was giving effect to his own'observations of the injuries caused to the deceased and Kusumawathie byanother. It was therefore a misdirection to tell the jury that the “ onlyinference to be drawn from the words which the appellant used wasthe set purpose of finishing the deceased and Kusumawathie ”. Thealternative construction of the words was not placed before the jury.Under section 245 (b) of the Criminal Procedure Code, it is the duty ofthe jury to determine the meaning of words used in an unusual sense.
A similar situation arose in Queen v. Sethan1 60 N. L. R. 117, where apossible interpretation favourable to the defence was not placed for theconsideration of the jury and the conviction was set aside on the groundthat the defence was not adequately put to the jury. Having regard
1 (1966) 69 N. L. R. 117.
ALLE3, J.—Albert Singh? v. The Queen
: to the above observations ancl the fact that the deceased had only onofatal injury we think that the trial judge should not have withdrawnfrom the purview of the jury the possibility of a lesser verdict.
The words spoken to by Somapala appear to have coloured the trialJudge’s view in regard to the charge of attempted murder as well. Ivusuma-wathic had five injuries which could have been caused with an ironpipe but although most of the injuries were on the head, none of themhad caused any internal injuries and the Doctor expressed the viewthat they were not sufficient in the ordinarj’ course of nature to causedeath. There is no evidence that they were grievous injuries or whyshe was hospitalised. It was therefore incumbent on the trial Judgeto direct the jury to consider the possibility of a lesser verdict on thecharge of attempted murder as well.
We might have chosen to reduce the offences to lesser offences hadit not been for the fact that owing to other misdirections, we feelconstrained to remit this case for a fresh trial.
Counsel for the appellant submitted that the observations of the trialJudge on. the failure of the appellant to give evidence were not warrantedin the circumstances of this case. We arc inclined to agree. Thedefence suggested to Kusumawathie that the appellant was not the. assailant and arrived on the scene to intervene in the quarrel betweenIv. D. Somapala and the deceased. In this connection, the trialJudge directed the jury in the following terms :—
“ Therefore I am telling you, gentlemen of the jury, on a commonsense angle, you will naturally ask yourselves the question, if theseare matters which he put as suggestions to the Crown, why docs he,the accused, not enter the witness box and offer his evidence? Andbecause this is a matter of which he has had knowledge, he was anactual participant, the man who separated, but not at the correct time,after the foul deed was done that he had separated the parties, andI think I am right in saying that the fact that lie lias refrained fromoffering evidence to substantiate this suggestion is because lieis convinced that the evidence of fact to support this suggestion whichhad he adduced before you would have operated against him. ”
It docs not appear to us that there is an obligation on the intervenientin a quarrel between two persons to give an explanation how the partici-pants in the quarrel received his or her injuries. The direction of thetrial Judge almost suggests that it was incumbent on the appellant toprove how the deceased and Kusumawathie came by their injuries.Althoughthctrial Judge has a discretion to comment on the failure of the. accused to give evidence (The King v. Dumisnmyx 43 N.L.R. 241 and TheKing v. Ccekiynnagc John Silva- 4G N.L.R. 73) such comment shouldonly be confined to those cases in which there arc special circumstanceswhich the accused only can explain and which therefore call for
(1042) 42 N. L. R. 241.
(1045) 4G A'. L. R. 73.
ALT.ES, J.—Albert Singho v. The Queen
an explanation from him. We arc unable to say that in this ease therewas any special circumstance which required the appellant to giveevidence.
There was also the complaint of the defence that in this case therewas a virtual withdrawal from the purview of the jury of their decisionon questions of fact, particularly in regard to the credibility to beattached to the evidence of the main witness Kusumawathio and in alesser degree to that of Somapala, and the nature of the criticism of thedefence witness Chandradasa.
At a very early stage of the summing up, the trial Judge hadtaken a strong view of Kusumawathie’s evidence and felt that thecross-examination was calculated to besmirch her -character. Said heat pp. 52 to 54 :—
“ Learned counsel for the defence has sought to attack her evidenceto impeach her credibility and also at the same time to assail hermoral character to despoil her reputation. You will have to consider,gentlemen, whether the suggestions made in that regard by learnedcounsel are of any substance whatsoever. It was suggested by learnedcounsel for the defence that this young woman Kusumawathie hada paramour in a man called Somapala-, just a suggestion, and that thatSomapala tliereaftcr had at some time committed suicide, just asuggestion. There is not an iota of fact to support it. And as it was,as a parting shot, if I may use that expression, learned counsel askedthe last question in the cross-examination of her evidence. ‘Afteryour husband’s death you have got married ?’ And 3-011 know thoway that she replied, and she said, ‘ Definitely, No.’ Those arequestions, gentlemen, put with a view to despoil her character.
I am sorry the questions were put. When questions like this areput, suggestions against the character of a woman, a 3-oung womanwho has now lost her husband, one would expect these suggestions tobe followed up by some kind of fact produced before 3'ou. After alla woman whether she may be in Colombo society or in a village, ina line-room of an estate, she is entitled to the protection of herreputation. I do not know how 3-ou feel in regard to that aspectof the matter, but as responsible men do 3-ou not think thatsuggestions of this kind have been put for the mere sake of puttingthem and to my mind it is most unfair by this poor woman.”
Again in dealing with a question put to her by Counsel for the defence,he said—
“ In regard to this matter too (that the deceased married ICusuma-wat-hio and came to live with her in the line room six months prior tothe tragedy) 3-ou will remember, gentlemen, it has just struck me,learned counsel for the defence put a rather startling question. Thequestion is this : (to the woman Kusumawathie) ‘ You came here andhad a nice time with Gunadasa and thereafter married him ? ’ I reallycould not understand the meaning of this question. It almost bordered
AX.LES, J.—Albert Singho v. Tbs Queen
on obscenity, but sucji was (he type of questions put to this woman inan endeavour to besmirch her character. You will realise therefore,gentlemen, to what depths the accused has gone, to what Iengtli3he has gone to tiy and blackmail this woman
In dealing with the evidence of the defence witness Chandradasa, hosaid—
“ Learned counsel did not call the accused, but called a man calledChandradasa. I cannot understand why be called him. lie saidhe heard the cries of Lcclawathic. At that time there was no Lecla-wathie. At a later stage when that car was brought to fetch thesopeople to hospital there was a Lcclawathic. He was asked aboutthis elusive and phantom figure, Somapala, and he said he did not. know. I was rather surprised when counsel for the defence chosetocall this witness. One can attribute it to inexperience, but I thinkthat even a law student would know that this kind of evidence would
lead nowhereIn the particular facts of this case lie has
sought to make suggestions to the principal witnesses for thcprosc-cuticn, that woman, Ivusumawathic, and w hat has the defence suggested—that on this day Somapala, this phantom, Somapala, this imaginarylover, paramour of Ivusumawathic, and Gunadnsa were engaged in afight in which Ivusumawathic also joined, and this accused to save hisneighbour, Gunadasa, from an attack by this unknown Somapala,who was there to attack him with tin's tapping knife and pipe, intervenedand managed to disarm Somapala of the iron pipe and the tappingknife. Of course there is no evidence that in the process of disarmingthe man this accused hacl injuries. There is no evidence whatsoever.He acted as a good Samaritan and unfortunately by some ill luck, bysome twist of fate he is in the dock. That is the suggestion made bythe defence.”
Although the trial Judge did direct in general terms that all questions offact were for the jury and that they were not bound b- any expressionof opinion of the facts by him, learned Counsel for the appellant submittedthat the Judge’s expression of the facts was couched in such stronglanguage that the jury were deprived from arriving at an independentview of the facts. There is some justification for this criticism. Counselhowever went further and submitted that the Judge’s observations onthe facts was not a fair representation of the evidence led in the ease.
On Ivusumawathic’s own evidence, she came-to the scene after thodeceased was attacked and she was therefore unable to state whattranspired before she heard her husband’s cry of distress. The existenceof a K. D. Somapala was not such a fantastic one. Kusumawathie onlystated that she was not aware that a person called Somapala committedsuicide after the incident but admitted that she knew a Somapala whoworked as a domestic servant under the Superintendent of the Estate.The witness Somapala was confronted with a statement made by himin the Magistrate’s Court (which was proved as D2) that he knew aSomapala who committed suicide. It was therefore not quite correct to
AI>LK»S, J.—Albert Singho v. The Queen
describe Somapala as an elusive, phantom figure, an imaginary lover,the paramour of Kusumawathie. Again when the Judge observed that“ to say that the last question put to Kusumawathie in cross-examinationas being ' After your husband’s death you have got married ’ it is amis-statement of fact. The question that was put was “ Did 30U getmarried? ” and the answer was a denial. We see no objection toKusumawathie, a young woman of 23 being asked whether she got marriedafter her husband’s death. Many a village lass whose husband diesprematurely seeks the protection of another partner to maintain andsupport her. We see nothing objectionable in the question being likelyto despoil her character. Again in reference to the expression “ nieotime ” which the Judge thought bordered on obscenity, Ivusumawathioin answer to the question admitted that the deceased brought her to theline room to have a nice time with him and ultimately did not want toleave him and married him. It was perhaps a marriage decided upon bythe deceased and Kusumawathie after trial and experience.
The picture that was therefore sought to be portraj?ed by the trialJudge of Kusumawathie being a virtuous and much maligned woman,who was unfortunate to lose her husband and whose character wassought to be besmirched unfairly by the defence is not borne out by theevidence. Even if this was the case, it was essential in the interests ofhis client for Counsel to cross-examine her on relevant material in view ofthe suggestion of the defence. Since we propose to order a re-trial inthis case we do not wish to elaborate on the possible circumstances inwhich the deceased and Kusumawathie received their injuries.
In regard to the evidence of the witness Somapala, the trial Judgedirected the jury in the following terms :—
“ It was, I think, quite apparent that this boy, I do not know' whetherit is proper for me to say, that innocence is stamped on his face. If3'ou think I am wrong it is for 3011 to have me corrected, but that ism3' impression. May be I am expressing rr^self in rather strongterms, but in whatever terms I express my views 3rou are entirely atliberty to disregard them if my views do not coincide with yours, butI cannot resist making this observatoin in view of the aspersions whichwere sought to be cast on this woman Kusumawathie.”
The demeanour of a witness is a matter that should be left for theconsideration of the jury and it is undesirable that a trial Judge shouldgive expression in strong language to his personal views on the questionof demeanour. For the trial Judge to say, in spite of some qualification,that “ innocence is stamped ” on the face of the witness, is practicallyto invite the jury to accept his views on questions of fact.
Wo think that the expressions of the Judge in regard to the credibilityto bo attached to Kusumawathie’s evidence, the strong views of theJudge unsupported by evidence that the defence sought unfairly tobesmirch her character, the commendation of Somapala’s evidence asbeing consistent only with a 'murderous intention and the absence of a
IYijeratne v. Inspector oj Police, Pori
.direction that it might be equivocal and equally consistent with thedefence suggested that the appellant was not the assailant, had thocumulative effect of removing from the consideration of the jury whatwere essentially questions of fact for their determination. In the wordsof Lord Reading in Leo Ceorge O'Donnell1 12 Cr. App. R. 219 at 221it seems to us that the Judge in this case used "in the course of hissumming up such language as leads them (the jury) to think that he isdirecting them, that they must find the facts in the way which hoindicates.”
In view, therefore, of these substantial misdirections both on tho lawand the facts, this conviction cannot be allowed to stand.
We were invited by Counsel for the appellant not to remit this casefor a re-trial, but wo think that if we accede to this submission, we wouldbe usurping the functions of the jury, who are entitled on a properdirection on Kusumawathie’s evidence to accept tho position that thoappellant was responsible for the injuries inflicted on the deceased andherself. Under the proviso to section 5 of the Court of Criminal AppealOrdinance, we are of opinion that there was evidence before the juryupon which the appellant might reasonably have been convicted. Wetherefore order a new trial on the same charges.
Case sent back for new trial.
W. A. ALBERT SINGHO (alias Piyasena), Appellant, and THE QUEEN, Respondent