105-NLR-NLR-V-72-Y.-P.-SETHUWA-and-4-others-Appellants-and-THE-QUEEN-Respondent.pdf
SilhlllCtl r. The (JureII
[Court ok Criminal Appeal]
1969 Present : H. N. G. Fernando, C.J. (President), Sirlmane, JM»and Samerawickrame, J.
V. P. SETHUWA and -1 others, Appellants, andTHE QUEEN, Respondent
C. C. A. 96-100 ok 10GS. with Applications 144-146
S. C. 101 j07—jlf. C. Kegalle, 60260
Tent} Lejore. Supreme Court—Examination of a Crown witness—Judge must notperform fu net ions of-prosecutor—Opinion of Judge as-to credibility of a witness—Duty of Judge not to express it during the examination of the witness.
At. a trial before the Supremo Court, the Judge must not. take on theexamination of a prosecution witness in such a manner that the whole of hisevidence incriminating the accused is elicited in answer to questions put bythe Judge. In such a case, the Jury can scarcely resist the impression thatthe Judge is presenting the evidence of the witness as being evidence inwhich the Judge himself lias confidence.
However much a trial Judge may bo entitled, in his summing-up, to expressan opinion as to the credibility of the evidence of a witness, there is no sanctionin law for the course of intimating to the Jury, during the examination of awitness, that the Judge considers his evidence to be trustworthy.
Al» PI £ALS against certain convictions at a trial before the SupremeCourt-.
E. R. S. R. Coomarasicamy, with T. Joganathan, Kosala Wijayalilake.and S. C. B. Wulgampaya, for the 1st, 3rd and 5th accused-apj)ellanta.
Y.C. David, for the 2nd accused-appellant.
Colvin R. de Silva, with Bala Nadarajuh, 1. S. de Silva and C. Sandra-segera, for the 4th accused-ai^ellant.
J.Mulhiak (assigned), for the accused-appellants.
T.A. de S. Wijesundera, Senior Crown Counsel, for the Crowu.
Cur. adv. vu.lt.
rrn
HUH. N. G. FERNANDO, C.J.—Set'hmca v.TThe Queen
June 8, 1969. H. N. G. Fernando, C.J.—
Five accused were indicted in this case on charges of being membersof an unlawful assembly the common object of which was to cause thedeath of one Siyathuwa, of the murder of Siyathuwa, and also of causinggrievous hurt to the son of Siyathuwa. On the 4th and 5th countsthe five accused were charged with the murder of Siyathuwa, on the basisthat the murder was committed by these accused and others in pursuanceof a common intention, and flic 5th count was of causing grievoushurt to the son of Siyathuwa also on the basis of common intention.All five accused were convicted on the first three counts, but only on thefooting of a common object to cause grievous hurt. On the 4th and 5thcounts also the first four accused were convicted of causing grievous hurtto Siyathu waand to his son.
The prosecution called two alleged eye witnesses, the first of whom wasKarunaratne the son of Siyathuwa. This witness was examined byCrown Counsel on some preliminary matters as to the inmates ofSiyathu wa’s house and the relationship between Siyathuwa and someof the accused. At this stage the learned trial Judge took on theexamination of the witness, with the result that the whole of his evidenceincriminating the accused and describing alleged assaults by some ofthem on Siyathuwa, his wife and his son was presented to the Jury inanswer to questions by the Judge ; some of these questions were of aleading nature. In fact, Crown Counsel had nothing further to ask thiswitness, except a couple of formal questions which elicited the fact thatthe witness had made a statement to the Pol ice. It was most unfortunate,that the Judge thus performed the functions of the prosecutor, for theJury could scarcely have resisted the impression that the trial Judgewas presenting the evidence of the witness as being evidence in whichthe Judge himself had confidence.
The evidence both of this witness and the other principal prosecutionwitness (one Wimalaratne) fell short of establishing that the seven personscame armed to the scene. On the contrary, it was clear from bothwitnesses that the 1st accused had on'previous occasions been in thehabit of coming near the house of the deceased and of abusing him, andthat on these prior occasions events had not proceeded beyond the stageof abuse. The learned trial Judge himself appears to have appreciatedat one stage that the evidence fell short of proving that the jjersons whocame on the night of the commission of these alleged offences hadentertained a common object of killing or injuring the deceased man.This point was made in the following passage in the summing-up :—
“ The evidence in this case—I have not dealt in detail with theevidence of Wimalaratne and Karunaratne ; I will do so in due course—seems to indicate that these five persons with others came there notwith the object of causing the death of Siyathuwa, because if that wasthe case they could have waylaid him and attacked him without making
H. X. G. FJ'.RXAXDO, C. J.—Sclhtura r. The Queen
575
their presence felt ; they had come there abusing, challenging Sivathmvato come out and, gentlemen, the evidence is that tJicrc were somefence sticks eloseby and some of tliesc assailants may have pulled outthe fence sticks ; there is no evidence that they canto there armed.The only indication that one of them had come armed was that smallkitul club PI. We do not know who it was who brought that.”
We .agree entirely that this was a correct direction on the facts. . Itfollows that unless there was some impressive evidence of iho actualconduct of the members of the accused's party which might have just ifiedan inference of a common object to kill or injure the deceased man. theprosccut ion could not establish any of the charges based upon t he existenceof an unlawful {Assembly.
The second prosccut ion witness Wimalaratne fell into somewhat seriousdifficulty in the course of eross-examinat ion, when he contradicted himselfas to what he claimed to have been the acts clone by sonic or other of theaccused in the course of their alleged assaults on the deceased, his wifeand his son. At more than one stage, the learned trial Judge interposedwith remarks such as this :—
" Q. Are you quite sure : Please don't say 8 yes ’ to everything,think and answer—arc you quite sure that it was Cunasekerawho assaulted you ?
A. Yes.”
I want to remind you that there is really no harm if you say‘ You caiuiot say or j^ou did not see.’ If you say that all ofthem came and assaulted you all, that is quite sufficient.Xo one expects you to give evidence in such details.”
With great respect it seems to us that observations such as these werebound to create in the minds of the Jury an impression that the trialJudge himself fully accepted the evidence of the witness to the. effectthat the "accused did participate in the alleged assaults, even though thewitness was unable to speak with certainty to any act done by each orany of the accused. However much a trial Judge may be entitled in hissumming-up to express an opinion as to the credibility of the evidence ofa witness, there is no sanction in law for the course of intimating to theJury, during the examination of a witness, that the Judge consideredhis evidence to be trustworthy. Moreover, the remark that the witnessneed not give details concerning alleged assaults by various people onthe deceased’s party was in fact highly prejudicial to the defence.Wimalaratne gravely contradicted the 1st witness Kaiunaratnc as to-the identit}" of tlie persons responsible for the assault on the deceasedand also on the deceased's wife and Karunaratne. In respect thereforeof each one of the accused the defence was quite entitled to ask the Juryto disbelieve the evidence as to these alleged assaults, on the ground thatthe two principal witnesses contradicted each other on questions of
5'G
H. X. G. FERNANDO, C.J.—•'Scthmia v. The Queen
V
identity ; and if evidence as to any one of the accused was disbelievedon this ground, that disbelief would then cast doubt on the truth of theevidence that that accused had even been present at the scene. Thedefence was entitled to a consideration by the Jury of the entire evidence. before it reached a conclusion that any one of the accused had been amember of the alleged assembly, and it was a mis-dircc-tion to leave itopen to the Jury to reach such a conclusion independently of the evidencewhich related to the alleged assaults.
Oh the grounds which have already been stated, wo are satisfied that,but for these misdirections the Jury could not have reasonably reachedthe conclusion that there had been an assembly the common object ofwhich was to kill or cause hurt to Siyathuwa, and on this ground wedirected a verdict of acquittal of all the accused on the first three counts.Vc saw no reason however to interfere with the conviction of the 3rdaccused for the offence of causing grievous hurt.
All the accused acquitted on counts1 to 3.
Conviction of the 3rd accused for theoffence- of causin'/ grievous hurtaffirmed.