098-NLR-NLR-V-48-WIJERATNE-Appellant-and-EKANAYAKE-Respondent.pdf
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DIAS J.—Wijeratne v. Ekanayake.
1847Present: Dias J.
WIJERATNE; Appellant, and EKANAYAKE, Respondent.
S. C. 1,770—M. C. Kandy, 20,580.
Evidence—Summary trial—Denial by accused of previous statement to police—
Evidence Ordinance, s. 155 (c).—No evidence in rebuttal—Effect of such
failure.
In a summary trial in the Magistrate’s Court, the prosecuting officerin order to discredit the accused cross-examined him in regard to astatement by him recorded in the information Book which was in-consistent with his defence. The accused; denied the statement whichwas not thereafter proved in rebuttal.
Held, that no prejudice was cause to the accused if the Magistrateaddressed his mind to the warning that such statement should be dis-regarded in assessing the credit to be attached to the evidence of theaccused.
Quaere, whether evidence in labuttal can in no circumstances he ledin a summary trial.
V/elipenna Police v. Pinessa (1944) 45 N. L. R. 155 referred to.^^PPEAL against a conviction from the Magistrate’s Court, Kandy.
R. L. Pereira, K.C. (with him Mackenzie Pereira), for the accused,appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
Cur. Adv. vult.
July 1, 1947. Dias J.—
The accused-appellant when under cross-examination stated—“ Imade a statement to the Police Inspector. Ukkubanda did not run afterme and strike me with a mamotty. I cannot say if he threw a stone.I did not say that Ranbanda struck me with a mamotty and the blowaccidentally struck Heenbanda and that I was assaulted with mamottiesby Heenbanda and others. I deny I said my clothes were covered withmud ”. It is obvious that these were answers to leading questions putby the prosecuting officer in terms of section 155 (c) the the EvidenceOrdinance in order to discredit the evidence of the accused based onalleged statements recorded in the Information Book. After the close ofthe case for the defence, the prosecution did not call the officer whorecorded the statement of the appellant to prove such statements.
It is argued that the failure of the prosecution to do this is an irre-gularity which vitiates the conviction.' This contention is based on thefollowing passage in the judgment of Dalton J. in the Divisional Benchcase of R. v. Graniel Appuhamy 1—“ In our opinion, the questions basedupon this statement should not have been put to the accused at all,unless the prosecution was prepared to go further in the event of theaccused denying he had made the statement. At the close of the defenceno request was made by the prosecution to call any evidence in rebuttal,although the sub-inspector in question was one of the Crown witnessesand had given evidence earlier ”. The law on this subject is summarisedby the Court of Criminal Appeal in R. v. Harmanissar—“ (3) The written
* (1944) 45 N. L. R.at p. 540.
(1935) 37 N. L. R. at p. 284.
DIAS J.—Wijeratne v. Ekanayake.
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record of such a statement is admissible by virtue of section 122 (3) ofChapter 16 to contradict a witness after such witness has given evidence.
The written record of the statement of a witness used as formulatedin (3) is not substantive evidence of the facts stated therein, but isavailable for impeaching the credit of such witness as laid down bysection 155 of the Evidence Ordinance”.
I am unable to agree that the railure of the prosecution to provethe statements from the Information Book which were put to theappellant under cross-examination and denied by him necessarilyvitiates the conviction. The case of R. v. Graniel Appuhamy (supra)shows that the learned trial Judge in that case failed to tell thejury that if the alleged previous inconsistent statement was notlegally proved, the jury should disregard the unproved statementin assessing the credit of the witness. Dalton J. said:“ The jury
were not directed that there was no evidence at all on this point,except his (accused’s) denial. This omission, on a most materialpoint, was a misdirection The rule of evidence is that the cross-examiner can ask the witness “ Did you on a previous occasion eitherto the Magistrate or to the investigating police officer or to someother person say so and so ? ” If the witness denies such statement, thecross-examiner must elect whether he is going to discredit the witnessby proving that previous statement, and in that event he will at oncemark the inconsistent statement if it is in writing, and duly prove it at theproper time either by calling the person who recorded the statement toproduce it, or if the statement was not recorded, by calling the personwho heard the inconsistent statement made. If he fails to do so, all thathappens is that the evidence of the witness stands uncontradicted, andthe judge of facts will assess his credibility in the usual way. In the caseof an accused witness in particular, it is the duty of the judge of facts tohave addressed to his mind the warning that the alleged unprovedstatement should be disregarded in assessing the credit to be attachedto the evidence of the witness. If that is done, the failure to prove suchstatement is of no significance. I have no reason to believe that theexperienced Magistrate who tried this case failed to address his mind tothese principles. I am, therefore, unable to say that any prejudice hasbeen caused to the appellant.
Crown Counsel, however, has drawn attention to another aspect ofthis matter. He has referred to the case of Welipenna Police v. Pinessa 1where Moseley J. held that evidence in rebuttal cannot be led in a summarytrial before a Magistrate. He points out that that is the reason whyevidence in rebuttal was not led. He submits that if the view expressed inWelipenna Police v. Pinessa (supra) is correct, then it will never be possibleto discredit an accused witness by proving a previous statement againsthim in order to discredit the evidence he gives at the trial. The prose-cution being debarred from leading evidence in rebuttal, the accusedcan never be contradicted. Sections 212 and 237 (1) of the CriminalProcedure Code provide that in trials before the District Court and theSupreme Court rebutting evidence can be led. The Code is silent,however, as to the calling of such evidence in a summary trial before a
1 {1943) 45 N. L. B. 115.
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Mansoor v. Jayatileke.
Magistrate. Does that mean that in the following cases, evidence byway of rebuttal cannot be led by the prosecution in the interests ofjustice—(1) Where the prosecution is taken by surprise by the evidencecalled for the defence, e.g., an alibi which can be disproved ; (2) Whereunder section 15 of the Evidence Ordinance proof is available to rebut adefence raised by the defence for the first time when the accused givesevidence1 or (3) Where a previous statement inconsistent with thepresent testimony of the accused is available to show that the evidenceof the accused is untrue ? I doubt if that is the law. Why shouldthere be one standard of proof in the District Court and the SupremeCourt and another in a Magistrate’s Court ? Under certain sections ofthe Criminal Procedure Code it is open to the Magistrate himself tocause evidence to be called at a summary trial, e.g., sections 189 (2), 190and 429 ; but a Magistrate is a judge, and will not use his powers inorder to fill up gaps in the prosecutor’s evidence. In view of the findingI have reached that the failure to call rebutting evidence in this case hascaused no prejudice to the appellant, this question does not strictly arise.It is, therefore, unnecessary to decide this question which merits consider-ation by a bench of two Judges or a Divisional Court.
I have carefully considered the facts of this case; but can see noreason to interfere with the findings of fact of the Magistrate. I havebeen asked to consider the sentence passed on the appellant. Theoffence is a serious one. In the course of a quarrel about a land theappellant took a katty from another and cut the injured man on hisface causing a permanent disfigurement. Having regard to the fact thatthe appellant has no previous conviction, I consider the sentenceexcessive. I reduce the sentence from three months’ rigorous imprison-ment to one months’ rigorous imprisonment. In all other respects theconviction and sentence will stand affirmed.
Sentence varied.