028-NLR-NLR-V-76-W.-F.-FERNANDO-Appellant-and-THE-QUEEN-Respondent.pdf
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WALGAMPAYA, J.—Fernando v. The Queen
[Court of Criminal Appeal]
Present : H. N. G. Fernando, C.J. (President), Deheragoda, J.,and Walgampaya, J.W. F. FERNANDO, Appellant, and THE QUEEN,- RespondentC. C. A. 162 OP 19718. G. 128)70—M. C. Kurunegala, 57502
Trial before Supreme Oourt—View by fury of scene of offence—Absence of Trial Judge—Illegality—Criminal Procedure Code, s. 238.
During a trial before the Supreme Court the jury viewed the soene of offencein the absence of the Trial Judge, and a demonstration was given then byprosecution witnesses concerning incidents relating to the commission of thealleged offence.
Held, that the absence of the Judge rendered the proceedings illegal andobnoxious to the provisions of section 238 of the Criminal Procedure Code.
Appeal against a conviction at a trial before the Supreme Court.
G. Motilal Nehru (assigned), for the accused-appellant.
Shiva Pasupati, Senior Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 26, 1972. Walgampaya, J.—
At the conclusion of the arguments in this case we set aside theconviction of the appellant and acquitted him. We now set down thereasons for our order.
The indictment against the accused was that on or about the 18th ofMay 1969 at Gettuwana in the division of Kurunegala he committedattempted murder by shooting at Police Constable 7594 BenedictAppuhamy with a gun. The Police Constable did not sustain any injuries.
At the close of the defence case and before the Assize Judge commencedhis summing up the Foreman indicated to the Judge that the members•of the Jury were anxious to visit the scene. The record then reads asfollows :
“ His Lordship directs the Clerk of Assize to conduct the Jurors ina body to the scene.
… At 2.10 p.m. the Jurors in the care of the Clerk of Assize,
the Crown Counsel, Assigned Counsel, Inspector of Police with PoliceSergeant Benedict Appuhamy, Court staff and the accused in thecustody of prison officials proceed to the scene in vehicles along theKandy road and turn left at the Gettuwana junction.
At 2.20 p.m. Jurors arrive and get down from vehicles and theInspector of Police conducts the party to Alexander’s house which ison a high elevation.
WAIXJAilPi’ft’’A, J.—Fernando v. The Queen
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Foreman : Q. Could you show the house of Alexander in which,the accused was ? (Inspector Maheswarans shows a house which is-cadjan thatched.)
Foreman: Q. Kindly show us the place where the Police partywas challenged by the accused. (Inspector Maheswaram stands at aspot about 15 feet away in front of Alexander’s house.)
Inspector: When we were coming up we saw the accused seated.When we spotted him seated the accused was inside and we werefurther down. (At this stage the distance is measured—the place-where the Inspector now stands to the spot where the accused wasseated—30 feet.) The spot from where the accused challenged us isfrom here to the doorway, (measured distance is 15 feet.) The door onthe parapet wall was open at that time.
Foreman : Show us the back door through which the accused ran.(At this stage the Inspector enters Alexander’s house and shows therear door. The Jurors are led out of the house and they are takenaround Alexander’s house to the back compound and from here theyget on to a climb and stop under a Jak tree which is in the adjoining:garden.)
Foreman : Show us the spot where the Police Sergeant stood whenthe accused fired the first shot. (At this stage Sergeant BenedictAppuhamy stands at a spot and says, this is the spot where I stoodwhen the accused fired at me. The Sergeant then walks down the slopeand says, this is the spot where the accused stood and fired. Themeasured distance is 37 feet.)
Foreman : Show us the place where the Sergeant was when he firedthe second shot. At this stage Sergeant Appuhamy moves about 6 feet,(measured distance is 6 feet from the earlier spot.)
Foreman : Show us the spot where the accused is supposed to havefallen. (At this stage the Inspector and. Sergeant Appuhamy walkdown and stand near some plantain trees. The Inspector turns roundand says pointing to a place where a house is supposed to have been,now only a mound of red earth can be seen, this is the spot where AbdulCader’s house was.)
Foreman : Show us the spot where P. C. Sakkaf was standing at thetime he flashed the torch. (At this stage Sergeant Appuhamy walks upand having crossed the barbed wire fence stands at a spot on Alexander’sland.) The Inspector at this stage walks down to the road and alittle to the right of Alexander’s house shows the direction in whichthe Sergeant’s party left to cover the rear of Alexander’s house. TheJurors walk uphill and view the spot. At this stage the Jurors get into-their respective vehicles and proceed. The Inspector having got downfrom his Jeep points out the spot where they are supposed to have-alighted from their cars before they came to Alexander’s house whichis about mile (2.50 p.m.)
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WALGAJVIPAYA, J.—Fernando v. The Queen
At 2.50 p.m. the party leave the scene of alleged incident and return
along the same road to Court-house. 3 p.m. at Court-house.
Clerk of Assize administers the oath of separation.
Certified correct.
(Sgd.)
Stenographer, S. C.”
When the Trial was resumed the following day the Clerk of Assizegave evidence. He spoke to the selfsame matters which I have earlierreferred to as to what occurred at the inspection of the scene.
The record of what occurred at the scene appears to have been takendown at the scene by a stenographer, presumably under the direction ofthe Clerk of Assize.
Provisions for the view of a scene of offence by the Jury are containedin Sec. 238 of the Criminal Procedure Code. Sec. 238 (1) states “ Wheneverthe Judge thinks that the Jury should view the place in which theoffence charged is alleged to have been committed or any other placein which any other transaction material to the trial is alleged to haveoccurred the Judge shall make an order to that effect and the Juryshall be conducted in a body under the care of an officer of the court tosuch place which shall be shown to them by a person appointed by the•Judge.
Sec. 238 (2). Such officer shall not except with the permission of theJudge suffer any other person to speak to or hold any communicationwith any member of the Jury; and unless the court otherwise directsthey shall when the view is finished be immediately conducted backinto court.”
In The Queen v. H. H. Aladin and another161 1ST. L. R. p. 7 Basnayake,C.J., said “ that the learned Judge did not take part in the view is not
-disputedThe Clerk of Assize appears to have administered
the oath of separation to the Jurors in the absence of the Judge.If this was done it was improper.”
In the instant case not only did the Clerk of Assize administer theoath of separation in the absence of the Trial Judge but the stenographerhas taken down notes of what occurred at the scene and also of whatInspector Maheswaram and Police Constable Benedict Appuhamy saidand did all of this in the absence of the Trial Judge. Those two witnesseswere not recalled after the Inspection. The observations of BasnayakeC.J. in 61N. L. R. p. 7 at p. 13 will apply with great force to the instantcase. “ It is unnecessary to add that a Judge who does not take part inan Inspection especially in a case of this nature is at a disadvantagewhen it comes to charging the Jury. They have a mind’s picture ofthe scene which he has not and he is confined to the bare sketch which
1 (1959) 61 N. L. II. 7.
WALGAMPAYA, J.—Fernando i>. The Queen
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does not convey such a vivid picture as a view. He is thereby precludedfrom making the contribution he might have been able to make to thecase had he taken part in the view.”
In the case of Tameshwar v. Reginam 1 (1957) 2 A. E. R. p. 683 LordDenning said “ It is very different when a ■witness demonstrates to theJury at the scene of the crime. By giving a demonstration he givesevidence just as much as when in the witness box he describes theplace in words or refers to it on a plan. Such a demonstration on thespot is more effective than words can ever be, because it is more readilyunderstood. It is more vivid as the witness points to the very place wherehe stood. It is more dramatic as he re-enacts the scene. He will not,as a rule, go stolidly to the spot without saying a word. To make itintelligible he will say at least “ I stood here ” or “I did this ” and, unlessheld in check he will start to give his evidence all over again as heremembers with advantage what things he did that day. …”
“ How if a view of this kind is part of the evidence—as their Lordshipsare clear that it is—it would seem to follow that it must be held in thepresence of the Judge … The summing-up of the evidence by an
impartial Judge with a trained mind is an essential part of every criminaltrial; but it can only properly be done by a Judge who has heard allthe evidence and seen all the demonstrations by witnesses. The Judge,for instance may notice something at a demonstration which may beof vital import but passes unnoticed by everyone else until he drawsattention to it. His presence ensures not only that the proceedings areproperly conducted but also that no relevant point on either side isoverlooked.”
In the instant case, Police Constable Benedict was in fact not injuredas a result of the gun shot fired by the accused. This was an importantTact for the consideration of the Jury in determining whether or not theevidence established beyond doubt that the accused had fired with theintention of causing the death of the Constable. The incident took placeat night in circumstances in which a possible explanation for the firingof the gun was that the accused only wished to scare a Police partywhich approached the house of Alexander in order to arrest the accused.
In these circumstances, and having regard to the full re-enactment atthe inspection of the alleged incidents as spoken to in the evidence ofthe prosecution witnesses, it was highly probable that the ultimateverdict of the Jury was influenced by impressions formed in the courseof the demonstration. Faith in the credibility of Constable Benedict’sevidence could well have been created by his demeanour and conductduring the demonstration, in which he actively participated. Thus, inThe words of Lord Denning, the demonstration became part of theevidence. It was clearly illegal that a demonstration of this nature tookplace in the absence of the trial Judge. On this ground, we quashed theverdict and sentence and acquitted the accused.
Accused acquitted.
1 (1957) 2 A. E. B. M3. .