038-NLR-NLR-V-72-J.-M.-CHANDRADASA-Appellant-and-THE-QUEEN-Respondent.pdf
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Chandradasa v. The Queen
[Court of Criminal Appeal]
1969 Present: H. N. G. Fernando, C.J. (President), Samerawickrame, J.,
and Weeramantry, J.
J.M. CHANDRADASA, Appellant, and THE QUEEN, RespondentC. C. A. 2 of 19G9, with Application 3S. G. 501US—M. G. Tissamaharama, 57742
■Charge of attempted murder—Defence of alibi—Failure of accused to give evidence—
Judge's adverse comments thereon—Effect—Evidence Ordinance, s. Ill (f).
In o prosecution for attempted murder by shooting with a gun, tho accused-appcllant did not give evidence but ho called as his witness his sister who govocvidcnco of an alibi. Tho trial Judge, in his summing-up, mndo adversecomments on tho failure of tho accused to enter tho witness-box and givoexplanation himself. Ho stated that tho accused “ sot dumb in tho dock buthas chosen to call tv sister of his to givo cvidcnco ” and that ho “ has not had thomonly courage to come to tho witness-box and soy that ho was elsewhere
Held, that tho natural effect of the Judgo’s adverso comments was to creatoantipathy towards tho accused in tho mind3 of tho Jury and causo them to rejecttho defenco of alibi out of hand or, at tho least, without duo and properconsideration. It is tho duty cf a trial Judge to placo o defence, howeverweak and insubstantial it may appear to be, fairly and adequately before tho-Jury.
1 A. I. R. (1915) Cal. 103.
* A. I. R. (!92-S)Mad. 24G.
SAAEERAWICKRAME, J.—Chandradasa v. The Queen
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Appeal against a conviction at a trial beforo the Supremo Court.
N.Balakrishnan (assigned), for the accused-appellant.
T. A. de S. Wijesundere, Senior Crown Counsel, for the Crown.
Cur. arfv. vult.
March 28, 1969. Samerawickrame, J.—
The appellant appeals from a conviction of the offence of the attempted'
murder of one Charles by shooting him with a gun.
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The prosecution relied on the evidence of Charles alone for proof of thefacts. Charles stated that on the day in question he slept, as usual, on abed in the. verandah of his house. At about 3-45 a.m. he was awakenedby the barking of his dog. He says, he looked around and saw the accusedfiring at him. Charles sustained no injuries but there were pellet markson the bed and on a sheet used by him. He also gave evidence of thefact that there had been some unpleasantness between the appellant andhimself over an association between the appellant and a son of Charles..This evidence was led by the prosecution to prove motive on the part ofthe appellant for the shooting but it also shows that there was animosityon the part of Charles towards the appellant.
The appellant did not give evidence but lie called as his witness hissister Jane Nona who gave evidence of an alibi.
In a Charge, which was otherwise quite unexceptionable, the learnedpresiding judge made the followirg comments on the failure of theappellant to give evidence. He said :—
“ Now in this case the accused has not chosen to give evidence. He-is perfectly entitled to remain in the dock and say not a word. Butin this case you will find that the accused has sat dumb in the dockbut has chosen to call a sister of his to give evidence. ”
He further said :—
" You will have to ask, as I said, the question, the prisoner himselfhas had not the manly courage to come to the witness-box and saythat he was elsewhere; he got his sister to substantiate, what is calledan alibi defence. ”
Towards the end of his Charge, he finally said :—
“ That is even on the assumption that this evidence of the womanis truo when she sa3rs that the accused was with her these ten days.Did not the accused have an opportunity to go out in the night anddo the shooting and go back ? That is where, gentlemen, you willask yourselves the question. How is it that the accused did notenter the witness-box and give an explanation himself ? Because if
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SAMERAWICKRAME, J.—Chandradasa v. The Queen
there is a matter for the accused to explain, if the evidence is of such anature as to give cause for the accused to submit an explanation, toexplain away certain factors which would operate against him, in suchcircumstances if the accused does not choose to make an explanation,you are rightly entitled to infer that he withholds evidence ; because ifthat evidence was led by him that evidence would be adverse tohis case. ”
There was not, in this case, a failure to call any evidence at all ; theaccused’s sister gave evidence of an alibi. But, even if we assume that,as the appellant was a person who could have given the best evidence inregard to the fact that he was at his sister’s house at the time of theshooting, his failure to testif3' was a matter for consideration, the pointcould have been made without stating that he ‘ sat dumb in the dock buthas chosen to call a sister of his to give ovidencc * or that he ‘ has not hadthe manly courage to come to the witness-box and say that he was else-where.’ The natural effect of such animadversions is to create antipathytowards the accused in the minds of the jury and cause them to rejectthe defence of alibi out of hand or, at the least, without due and properconsideration. An impartial and adequate consideration of his case bythe judge of fact is the right of every accused. It is for that reason thatthis Court has laid it down that it is the duty of a trial judge to place adefence, however weak and insubstantial it may appear to be, fairly andadequately before the jury. We are unable to say that the learnedtrial judge has fulfilled this duty.
The inference which the learned trial judge suggested might be drawnfrom the failure of the accused to explain was that the evidence waswithheld because it would be adverse to his case. The evidence thelearned judge referred to was the evidence of the accused himself. It isnot an appropriate inference to suggest in regard to tho accused’s ownevidence, but this may be a matter of form. What the learned judge hadin mind may be expressed thus, namely, that it might be inferred thatthe accused did not give evidence because lie could not truthfully havegiven evidence that he was at his sister’s house at the time of the shooting.The drawing of such an inference is however precluded by the circum-stances of the ease. The accused has, through his sister, led evidence ofan alibi and it would be inapt to infer that lie kept out of the witness-boxbecause the assertion of an alibi was inconsistent with the truth. Itmay be that the effect, if any, that could be given to his failure to testify,would be that a court should be less ready to consider that tho evidenceof alibi raised a reasonable doubt in regard to the prosecution case becausethe accused, who was the person who was in the best position to giveevidence in regard to it, has failed to testify.
An inference that tho evidence which a party is able to placo beforecourt, but chooses to withhold must be unfavourable to that party is oneroferrod to at Section 111 (/) of the Evidence Ordinance. It is a presump-tion of fact. One should havo thought that such a presumption would
SAMERAWICKRAME, J.—Chain/radasa v. The Queen
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not arise in a criminal case because of the fundamental rulo that anaccused is free to elect whether ho will, or will not call evidence. Ithas been hold that the presumption in s. 114 (/) is not one which may bo•drawn against an accused person bccauso ho is free to elect whetherhe will, or will not, call cvidenco, and an inference cannot be drawnagainst him by reason of his electing to take tho ono courso rather thantho other—vide Hurry Churn Chitckerbully and Another v. the impress.1It has been suggested that it is not a principle of evidonco but a rule oflogic that such an inferenco might be drawn. This rulo was first set outin tho dictum of Lord Ellcnborough in Rex v. Cochrane :—
“ Eo person accused of a crime is bound to offer any explanation ofhis conduct or of circumstances of suspicion which attach to him, but,nevertheless, if he refuses to do so, where a strong prima facie casohas been mado out, and when it is in his power to offer evidence, ifsuch exist, in explanation of such suspicious circumstances whichwould show them to bo fallacious and explicable consistent with hisinnocence, it is a reasonable and justifiable conclusion that horefrains from doing so only from tho conviction that tho evidence sosuppressed or not adduced would operate adversely to his interests. ”
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Tin's dictum has been applied in eases of circumstantial evidence as wellas where the evidence is direct. In many eases, however, while it has_been held that in tho circumstances the failure of an accused to offerevidence was a matter to bo taken into account, tho inference to bodrawn or tho effect to be given to that fact has been sot out in termsother than that contained in the dictum of Ellcnborough J. In a recentcaso, in Scelin and others v. the Queen2, in which this Court by a majoritydecision held that the failure of an accused was in tho circumstances amatter that the judge had correctly directed the jury to consider, T. S.Eernondo J., who delivered the order of the Court considered the effect tobo given to that fact and referred to a passage from Cross on Evidencewhich sets out the possible effect that may be given. Cross states :—
“ While a party’s failure to testify is not to bo treated as equivalentto an admission of the case against him, it may add considerableweight to tho latter. ”
Eater, he states :—
“ As a general rule a party’s failure to explain damning facts cannotconvert insufficient into prima facie evidence, but it may cause primafacie evidence to become presumptive. ”
The inference that evidence which an accused might have called buthas -withheld was unfavourable to him is so incompatible with thofundamental rule that an accused is free to elect whether ho will, or willnot, call evidenco that it may bo necessary to consider, in an appropriatecase, whether it is an inference that should in any caso be drawn. Thoproper effoct to bo given to the failuro of an accused to offor evidence
*■ JO Calcutta 140.
* (796-5) 68 N. L. R. .116.
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Vairayan Nadar v. The Commissioner of Inland Revenue
when a prima facie case has been made out by the prosecution and the-accused is in a position to offer an innocent explanation appears to have-been hotter set out in the dictum of Abbott J. in Bex v. Burdett1
" No person is to bo required to explain or contradict until enough,has been proved to warrant a reasonable and just conclusion againsthim, in tho absence of explanation or contradiction; but when such,proof has boon given, and the nature of tho case is such as to admit ofexplanation or contradiction, can human reason do otherwise than^adopt tho conclusion to which proof tonds. “
In the present case, as indicated earlier, the circumstances of the caseprecluded the inferonce that tho evidenco which tho accused withheld,would have been adverse to his case.
It has been said that though it is a matter for the judge’s discretion,whethor ho should comment on the fact that an accused has not givenevidence, yet tho vorj’’ fact that the prosecution is not permitted to-comment on that fact shows how careful a judge should be in makingsuch a comment—vide Waugh v. Bex.2 Where a direction in a Charge-on this point may have had the effect of misleading tho jury this Courthas interfered—vide King v. Duraisamy3, Chettiah v. the Queen4 and.Jayasena v. The Queen.5 In the present caso, tho torms in which thedirection of the learned judge on this point were made and tho faultyformulation of the inference that might bo drawn from the failure of theaccused to testify may well have prevented tho jury from giving duoconsideration to the evidenco of alibi led by the defence and from givingits proper effect to it. We arc, therefore, of the view that this conviction,cannot bo allowed to stand. It appears to us, however, that there was,in this case, evidonce upon which, a jury properly directed, mightreasonably have convicted. Wo accordingly set aside tho convictionand sentence passed on the appellant and direct a new trial zipon thesame indictment.
Case sent back for a new trials