002-NLR-NLR-V-70-U.-A.-ARIYADASA-Appallant-and-THE-QUEEN-Respondent.pdf
Ariyadasa v. The Queen
[Court of Cmmestal Appeal]
Present: T. S. Fernando, J. (President), Sirimane, J., andAlios, J.U.A. ARIYADASA, Appellant, and THE QUEEN, RespondentC. C. A. Appeal No. 83 of 193G, with Application 138S.G. 117—M. C. Ilambantota, 47516
Evidence Ordinance—Section 157—“ About the lime when the fact took place ”—Admissibility of evidence—Question must be decided by Judge at the time whenthe evidence is tendered—Criminal Procedure Code, s. 244.
In a prosocution for attomptod murdor, tho injurod person's evidence at thotrial was that, aftor he was attacked at about 7 p.m. on th i day in question andwas lying injurod right through th#nij.ht, ho made a statement to the doctorwho oxaminod him on tin*following day at 9.10 a.m. whan he was taken to thohospital.
* {1932) 35 N. L. It. 28.
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T. S. FERNANDO, J.—Ariyadasa v. The Queen
Held, that the injured person’s statement to the doctor, although it was madeabout 14 hours after he was attacked, was made at the earliost opportunity andwas, therefore, corroborative of his testimony at the trial. It was covered bythe expression “ about the time when the fact took place ” in section 157 of theEvidence Ordinance.
“ The corroboration that section 157 contemplates is not corroboration in theconventional sense in which that term is used in courts of law, but in the senseof consistency in the conduct of the witness tending to rendor his testimonymore acceptable.”
Held further, that section 244 of the Criminal Procedure Code requires that thequestion as to the admissibility of evidence sought to bo led at a trial before theSupreme Court must be decided by the Judge ct the time when the evidence istendered.
.A.PPEAL against a conviction at a trial before the Supreme Court.
Q.E. Chitty, Q.C., with Anil Obeyesekere and M. Kanakaratnam,for the accused-appellant.
T.A. de S. Wijesundera, Crown Counsel, for the Crown.
Cur, adv. vult.
January 15, 1967. T. S. Fernando, J.—
The appellant as the 2nd accused, along with another man as the 1staccused, stood his trial on an indictment consisting of two counts, bothalleging the commission of the offence of attempt to murder. The firstcount related to injuries inflicted on a man by the name of Heen-• mahattaya, while the second related to injuries inflicted on his wifeMagihamy. The jury returned a six to one divided verdict finding bothaccused guilty of attempt to minder on the first count, and the firstaccused alone guilty of attempt to commit culpable homicide not amount-ing to murder on the second count. The appellant was found not guiltyon the second count. In respect of his conviction on the first count theappellant was sentenced to a term of 5 years’ rigorous imprisonment.The first Hocused has not appealed either against his conviction or againstthe sentence of imprisonment imposed on him.
Of the points raised on behalf of the appellant the only one requiringany serious consideration is that contained in the additional ground ofappeal, viz., that the statement made by the injured Heenmahattaya tothe doctor who examined him on the morning following the night ofthe attack upon him was wrongly received in evidence. There was nodispute between counsel that the only section of the EvidenceOrdinance under which this statement could have been admitted atthe trial is section 157.
Heenmahattava’s evidence at the trial was tjjat he was attacked sometime between 6.30 and 7 p.m. on the evening of the 12thlovember, 1964,that his cries brought to the scene his wife who was herself then attacked
T. S. FERNANDO, J.—Ariyadasa v. The Queen
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by the 1st accused, and that he and his wife lay injured and bleeding untilnext morning when they succeeded in drawing the attention of somepersons to their plight. The police reached the scene shortly thereafter,and Heenmahattaya and his wife were then taken to hospital. Thestatement, the admission of which has been questioned on this appeal,was made by Heenmahattaya to the doctor at 9.10 a.m. on the 13thNovember. His wife, who was examined for injuries immediately there-after, also made a statement to the same doctor as to the person whoattacked her. The appellant was acquitted on the count laid in theindictment in respect of injuries caused to the wife, and, it may beadded, the latter did not in her statement to the doctor or in herevidence implicate the appellant as her attacker. Her positionthroughout was that it was the 1st accused alone who attacked her.
Mr. Chitty has argued before us that the statement in dispute, clearlynot having been made “ at the time ” of the attack on Heenmahattaya,was also not made “ about the time ” of that attack. We do not think ahard and fast rule can be laid down as to when a statement relied on ascorroboration within the meaning of section 157 falls outside the periodcovered by the expression “ about the time when the fact took placeThe question must necessarily depend on the circumstances of eachparticular case. In the case under review here the fact took place about7 p.m. on the 12th November and, as Heenmahattaya’s evidence wasapparently believed by the jury, we are correct in assuming that Heen-mahattaya lay injured right through the night. The first person toobserve his plight did so at about 7 a.m. the next morning, and he wasthereafter taken by some conveyance to the hospital, and on admissionthereto made the statement in question at 9.10 a.m. Although about 14hours had then elapsed after the fact took place (excluding any state-ment he may have made to the police which is shutout by section 122(3)of the Criminal Procedure Code), we think the statement to the doctorwas made at the first reasonable opportunity that presented itself toHeenmahattaya.
The corroboration that section 157 contemplates is not corroboration inthe conventional sense in which that term is used in courts of law, but inthe sense of consistency in the conduct of the witness tending to renderhis testimony more acceptable.
While we have expressed above our own opinion as to whether thestatement in dispute fell within section 157 of the Evidence Ordinance, itis necessary here to point out that, in terms of section 244 of the CriminalProcedure Code, in a trial before a judge and jury, it is the duty of thejudge to decide all questions as to the admissibility of evidence sought tobe led. Where he has so decided such a question, and it cannot beshown that he has in doing so acted contrary to principle, there can be nointerference by this Court. Learned Crown Counsel has brought to ournotice the decision of the English# Court of Criminal Appeal in R. v.Cummings1 where Lord Gfiddard C.J. observed—(see page 552)—“ Who
1 (1948) 1 A. E. R. 551.
1**—H 7711 (10/67)
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TAMBIAH, J.—Martin Silva v. Mahasoon
is to decide whether the complaint is made aa speedily as could reasonablybe expected ? Surely it must be the judge who tries the case. There isno one else who can decide it. The evidence is tendered, and he has togive a decision there and then whether it is admissible or not. It musttherefore be a matter for him to decide and a matter for his discretion ifhe applies the right principle. He had clearly in mind that there must be
an early complaintIf a judge has such facts before him, applies
the right principle and directs his mind to the right question, which iswhether or not the prosecutrix did what was reasonable, this court cannotinterfere ”. R. v. Cummings was a case relating to the commissionof a sexual offence, but the dictum quoted above is neverthelessapplicable to a case such as that now before us. We must assume thatthe judge directed his mind to the question at the time the evidence wastendered. That is the only proper assumption in the absence of anythingcontra.
We dismiss the appeal.
Appeal dismissed.