K. S. SEDIRIS, Appellant, and THE QUEEN, Respondent

065-NLR-NLR-V-74-K.-S.-SEDIRIS-Appellant-and-THE-QUEEN-Respondent.pdf


224
ALLES, J.—Sediris v. The Queen
[Court of Criminal Appeal]
1970Present: Alles, J. (President), Weeramantry, J., and
– de Kretser, J.
K. S. SEDIRIS, Appellant, and THE QUEEN, RespondentC. C. A. 3S/70, with Application 58/70S. C. 361 j6S—31. C. Horana, 46406
Trial before Supreme Court—Evidence in rebuttal—Permissibility—Principles
applicable—Criminal Procedure Code, s. 237 (1).
Tho following considerations are relevant for tho exercise of the Judge’sdiscretion in permitting evidence in robuttal to be led under section 237 of theCriminal Procedure Ccdo by calling of witnesses to rebut a defonco raisedex im proviso where the prosecution is takon by surprise :—
Whether the prosecution has been takon by surprise.
Whether the robutting evidence could have been given in chief.
Whether it does or docs not surprise the defence.
Whothor it places tho dofonco at a disadvantage.
A conviction will not bo sot aside in appeal if evidonce in rebuttal wronglyadmitted has not prejudiced tho dofence.
.ApPEAL against a conviction at a trial before tho Supreme Court.
It. S. S. Coomaraswamy, with Anil Obeysekera, C. Chakradaran,
T.Joganathan, S. C. B. Walgampaya and (assigned) E. B. Vannilamby,for the accused-appellant.
N. Tittawella, Senior Crown Counsel, for tho Crown.
Cur. adv. vult.
August 24, 1970. Alles, J.—
Tho appellant, Sediris, was charged with tho attempted murder ofone Sirisona, tho offence, according to the prosecution, having beencommitted on 24th August, 19G7. After trial the appellant wasunanimously convicted of attempted culpable homicide not amountingto murder and sentenced to three j-cars’ rigorous imprisonment.
Sediris, his brother Piyascna and their mother Soidahamy lived in ahouso a littlo distanco away from tho houso where Obias, tho brotherof Sirisona, livod with his wife Babun Nona. On tho day in question,Siriscna was also residing in the houso of Obias. ■ It is not in disputesthat for some timo prior to tho dato on which Sirisena was stabbed therehad been ill fooling between the two families. According to Sediristhe cause of tho displeasuro was becauso Obias suspected that tho
AL.LES, J.—Sediris v. The Queen
225
appellant had given information to the authorities that Obias was sellingkasippu. The prosecution however maintained that as Obias and throoothers were acquitted on a charge of murder of the appellant's brothor,the members of tho appoLlant’s family wore angry with Obias and Sirisena.Another brother of the appellant, Robias, lived in a separate house closeto that of tho appellant and he owned a number of boutiques, one ofwhich ho had rented to Piyadasa and another to one Lewis Singho.
Sirisena and Babun Nona, who were the main witnesses for theprosecution, stated that the .appellant and Robias came to their houseafter dark:There is somo contradiction as to whether they came about
7.30 p. m. or later about 10 p. in. According to Sirisena he was recliningon a bed on the rear verandah when tho appellant called out to his brotherObias from tho compound. Sirisena stepped down to the compoundwhen the .appellant saying “I do not want Obias. You aro enough ”stabbed him with a knifo. Sirisena identified tho appellant by thoaid of a bot-tlo lamp that was lit on the verandah. Ho cried outand in response to his cries, Lewis Singho who was inside the housecame out and assisted him. Ho was rushed to tho hospital where liemade a statement to tho Police at 11.15 p.m. In that statement hedisclosed the name of the appellant as his assailant and also mentionedthat Robias was present. Babun Nona who corroborated Sirisenastated that she identified the appellant from the verandah and saw himstab her brother-in-law.,
The defence suggestion to Sirisena and Babun Nona in cross-examination was that there was an incident between Piyadasa andLewis Singho at the latter’s boutique about 2 p.m., in the course ofwhich Sirisena intervened and struck Piyadasa ; that Piyadasa cameto Obias’ houso tho samo evening when there was a drinking bout inprogross ; that tho injured man followed Piyadasa with a knife and intho darkness Sirisena was stabbed by some person whom he was not abloto identify and that Sirisena and Babun Nona were falsely implicatingthe appellant as the assailant at the instance of Obias.
Tho prosecution also led tho evidence of Inspector Karunaratno andSergeant Wiraaladasa to establish the absence of tho appellant andRobias from tho village shortly after the incident. Inspector Karunaratnostated that he visited the houso of the appellant at 2.45 a. m. on 25thAugust but that the appellant was not hi the houso. Sergeant Wimaladasa,who assisted in the investigation, testified to the absence of tho appellantfrom his houso and the village on the 25th and 6th of September.
After the prosecution had concluded its evidence, the appellant gaveevidenco of an alibi. Ho referred to tho earlier incident at the boutiqueand gave an account of his entire Inovoments on the 24th and said thatho remained at homo the entire evening and tho night. Ho specificallydonied that any polico officor came to his mother’s house in. search ofhim in tho early hours of tho morning of the 25th. According to himha’was in the village until the 2Sth when ho left for Balangoda. His
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ALLES, J.—Sediria v. The Queen
mother Soidahamy and his brother Piyasena gave evidence in supportof the alibi. Robias gave detailed evidence of the quarrel betweenPiyadasa and Lewis and tho part played by Sirisena in that quarreland denied that any police officer came in search of him on the night ofthe stabbing.
On a consideration of the ovidence led in the case thoro was, therefore,a direct conflict botweon tho prosecution and tho defence as to whetherInspector Karunaratne came to the house of the appellant in the earlyhours of the morning of tho 25th in search of the appellant, a conflictwhich had to be resolved by tho jury as judges of fact.
After the evidence of tho prosocution and tho defence was closed,Crown Counsel moved to call the evidonce of Inspector Karunaratne inrobuttal. No application was made to the learned Commissioner byCrown Counsel for the oxerciso of tho discretion of the Court to call thisevidence and everj-one in Court appears to have assumed that CrownCounsel was entitled to call such ovidence as of right. After InspectorKarunaratne was recalled and his evidence led, Crown Counsel again ledthe evidence of Sergeant Wimaladasa without any application beingmade to call him. At the hearing of the appeal before us Mr. Tittawclladid not seek to support the conduct of Crown Counsel in leading thisevidence without^ first obtaining the leave of the Court, but since thisevidence was led without objection, we must assume that the learnedCommissioner exercised his discretion in permitting this evidenceto be led.
. The evidence in rebuttal consisted of the evidonce of tho two Policeofficers being led in greater detail about tho steps they took to makesearch for the appellant and Robias on tho morning of the 25th and onthe 5th and 6th September. Crown Counsol also marked in evidencetho productions “ X ”, “ Y ” and “ Z ” being a note of the observationsof tho Police officers in regard to the search.
Learned Crown Counsel in appeal did not seek to support theirproduction at tho trial. The recorded observations of tho Police officerscould have been utilised only to refresh their memory or to contradictthem.
Since wo do not have the benefit of an order by tho learned Com-missioner wo can only assumo that tho “rebuttal evidonce” was led for tliopurpose of rebutting tho evidencoof the appellant’s alibi. Even in regardto tho alibi the ovidence of Inspector Karunaratne only affects tho move-ments of tho appollant at 2.45 a.m. on the 25th, which was long after thotime of the alleged stabbing. The loarncd Commissioner, however, in direct-ing the jury told them that if they preferred to accept tho ovidonco of thoInspector that tho appollant was absent from his homo at 2.45 a.m. ontho 25th, it would soriouslv affect tho credibility of tho appellant inregard to his movements at tho timo of tho stabbing bo it 7.30 p.m. or10 p.m. To this oxtont one might therefore urge that tho conduct oftho appollant in being absent from his home at 2.45 a.m. affected his
AX.LES, J.—Sediris v. The Queen
227
alibi. Bo that as it may, in tho view of tho majority of us, tho evidoncein rebuttal should not havo been allowed. It only served to repeat,rolevant evidonce given by tho prosecution as part of its case in chief inregard to tho absence of tho appellant from his houso in tho early hoursof tho morning of 25th August and his absence from tho village on the5th and 6th of September. It was a misconception to consider suchevidence as evidence that could proporly bo lod in rebuttal.
It seems apparent to tho majority of us from tho cross-examination ofSirisena and Babun Nona that tho case for the defence was, that Sirisenawas stabbed by an' unknown man, and that tho appellant was falselyimplicated due to provious enmity. Although it was not diroctlysuggested to the prosecution witnesses that the appellant was not presontat the time of tho stabbing, in tho view of tho majority of us, it was afair inference that the defence envisaged in tho course of tho prosecutioncase was that of an alibi. Tho incident that took placo at 2 p.m., whichaccording to the defence prompted Piyadasa to come later that eveningand creato trouble, did not suggest that the appellant took any part inthat transaction. Tho chief actors in that incident wero Piyadasa,Lewis Singho and one Jayatungo. When Lewis Singho hit Piyadasa,Robias camo and separated them. Thereafter Sirisena, Obias andBabun Nona came on tho scono and after Sirisena assaulted Pij'adasa,Obias and Babun Nona took him away. There was no reason for theappellant, on that version, to accompany Piyadasa and any others to thohouse of Obias that evening to create troublo.
Evidenco in rebuttal is permitted to bo led at the discretion of the trialJudge under Section 237 (1) of the Criminal Procedure Code. It ispermitted in the interests of justice, when tho prosecution has been takenby surprise by evidenco being led on behalf of tho defence which tho[ roseeution could not reasonably anticipate. In such a case ’ thopresccution, if it has ovidenco which runs counter to tho defence case,is permitted to lead evidence in rebuttal. A good example of suchrebuttal evidence is illustrated in David Flynn1. In that ease the.accused set up an alibi that ho was at a swimming pool at tho relevanttime and called as a witness a girl who testified that she saw tho accusodat the pool. The evidonce was concluded, speeches of Counsel weremade and the trial adjourned for tho summing up tho following day..During tho interval tho prosecution obtained evidenco that tho girlwaselsewhere at the material time and moved to call tho girl’s employer tho.following day to give evidence that tho girl was in tho shop at the time inquestion. Tho evidence was allowed to be led in.rebuttal by tho trial".Judge and his decision was upheld by the Court of Criminal Appoalpresided over by Lord Coddard. At p. 18 Lord Goddard stated—
“ In our opinion, if in tho caso of an alibi, evidenco comes into thopossession of tho prosecution at a late stage, it ought, as a generalrule, to bo admitted, unless tho alibi has boon sot up earlier.” .., .
» U0S7) 42 Cr. A.Jt. JS.
228
AX.LES, J.—Stdiria v. The Queen
Evidence in rebuttal will however not bo permitted if the additionalevidence did not relate to something which had arisen ex improviso inthe courso of the trial, but was evidonce, tho necessity for which should. have been obvious from tho outset. Thus in Harold Norman Day1, afterthe defence of a prisoner charged with forgery and obtaining money bya forged instrument had been closed, tho Judge permitted tho prosecutionto call a handwriting expert. Specimens of tho prisoner's handwritingwere in tho possession of tho prosecution from the commencement of theproceedings but the prosecution, in order to establish its case, dependedonly on tho uncorroborated testimony of an accomplice. Tho Courtof .Criminal Appeal set asido tho conviction, and Lord Howart in thocourso of tho judgment said—
“ It cannot be said …. that tho ovidenco of the handwritingexport was evidence on any matter which arose ex improviso. Notcan it bo said that it was ovidenco which no human ingenuity couldforesee. It was evidonco the necessity for which was obvious. It is- truo that, if a question arises in tho course of a trial as to the proper -time at which evidence should be received, tho Judge may be calledon to decide that question and in doing so to oxorciso a judicialdiscretion. This was not a case of that kind. This was a case wherewhat was being dono was to ask for the remedying of an obvious defectin the evidence called in support of tho prosecution, not only aftertho prosecution had been closed, but also after the evidence of thedefencehad beenhoard. Itwasanendeavour tocall that supplementaryevidence although the material on which it was to be given had beenin tho hands of tho prosecution from tho boginning and although theovidonce related to a branch of the caso for tho prosocution on whichtho prosecution must have realised that positivo ovidenco ought tobe given.”
In Coylon, evidence in rebuttal led undor tho provisions of Section 237 (1)of tho Criminal Procedure Code, are of two types. Firstly, there isthe ovidenco of Police officers who are called in rebuttal to give evidenceof statements (not boing confessions) mado by accused persons underSection 122 (3) of the Criminal Procedure Codo to contradict their ovidencoat tho trial. In such a caso, tho Court of Criminal Appeal has held!that it is not open to tho prosecution to load ovidenco in robuttal, ifsuch ov.idonco could have been proved as an admission by tho prosecutionas part of thoir caso.—Thuraisamy2, M. S. Perera3 and Den Wilbert*.
In tho latter case, however, the Court was inclined to take tho view,following the decision in Buddharakila Thera6, that statements mado intho courso of an investigation, oven if they woro admissions, cannot boused except to discredit a witness under Section 122 (3). This latterview appears to be supported by tho docision of tho Privy Council in 1
1{1040) 21 Cr. A. R. 163.* {1953) 57 N. L. R. 274.
» {1952) 54 N. L. R. 449.* {1962) 64 N. L. R. 83.
• {1962) 64 N. L. R. 433.
ALLES, J.—SedirU v. The Queen
229
Ramasamy1. In the present case however, wo are not consideringevidonce in rebuttal of this type and it is therefore unnecessary to considerthose decisions, except to stato that there is imptiod in tho decisions inThuraisamy and M. S. Perera that evidence in rebuttal will not bopermitted if such evidenco is relevant and can bo given in chief.
In tho present case wo are dealing with evidence in rebuttal of a differentkind—the calling of witnesses to rebut a dofonco raised by an accusedperson at the trial which arises ex improvise and where tho prosecution istaken by surprise. Tho only roported decision in which evidenco inrebuttal of this t3^pe has been considered in Ceylon is a decision of Nihil! J.at an Assize trial in 1940—The King v. Ahamadu Ismail2 where the learnedJudge followod the principles of tho English law laid down in King v.Crippen 3. In King v. Ahamadu Ismail tho prosecution asked for leave tocall witnesses in rebuttal—(1) to call the Inspector of Police to provecertain statements made by tho accused to tho Police to contradict himand (2) to call ore Farced to rebut tho suggestion made by tho accusedthat ho wont to Jalaldecn’s boutique for tho purpose of selling gems toJalaldeon at tho instance of Farced. The prosecution was aware thatthe accused had gone to a certain boutique and sold gems and that thoaccused had stated that ho could identify a boy in that boutique whohad witnessed the transaction but ho did not mention his name. At thetrial he gave tho name of tho boy as that of Farced and stated thatho went at Farced’s suggestion to sell gems to Farccd’s mudalali. Thocase for the prosecution was that the accused had a largo sum of moneywith which he hired the assassins to commit tho crimo but ho soughtto give an explanation for tho possession of this large sum in his hands.Nihill J. held, that it could not bo said that tho prosocution had beentaken completely by surprise, but allowed the evidonce. of Farecd tobo led in rebuttal. It was tho Judge’s view that tho prosecution couldnot have led tho evidonce of Farcod as part of tho prosecution case and itwas only after tho accused gave evidence that Fareod’s evidonce becamerelevant. Tho accused in giving evidence had given an account of hismouomants in tho village including the visit to Fareed’s mudalali’sshop and the loarned Judgo allowed tho evidence of Farecd to bo led inrobuttal to enable the prosecution to prove that this part of the accused’sexplanation of his conduct and movements after the crimo was false.
In Ahamadu Ismail the Court laid down tho following considerationsas boing relevant for tho purpose of exorcising the Judge’s discretionundor Section 237—
Whether tho prosocution has been taken by surprise.
Whether tho rebutting evidence could have been given in chiof.
Whothor it does or does not surprise the defence.
{4) Whothor it places tho defence at a disadvantage. i *
i (1964) 66 N. A. It. 265.* (1940) 42 N. L. R. 297.
* (1911) 1 K. B. 149. '
230
Fajrulhuq v. Jayauardena
In rogard to tho calling of Fareod in tho abovo cast), although the firstcondition stated abovo did not apply, tho other considerations appliedand tho Court properly exorcised its discretion in allowing Farced tobo called as a witness in rebuttal.
Applying tho principles statod in A ha mad a Ismail, with which werospectfully agree, it cannot bo urged in any view in tho present case,that Crown Counsel was justified in recalling tho Police witnesses togivo evidence in rebuttal.
There only romains Tor consideration whether the calling of thisovidonco in rebuttal can bo said to havo prejudiced tho dofonce. Wothink not. The evidence that was lod, unliko tho facts in Day’s easo(supra), was only repetitive of tho evidence given in chief. The casedopended on the degree of credibility which tho jury were prepared toattach to tho evidence of Sirisona and Babun Kona. Their ovidencowas fairly put to tho Jury by tho learned Commissioner and in spite ofcortain infirmities tho Jury wore apparently impressed by their evidence,to bring an unanimous verdict against the appellant. Wo do not thinktho calling of Inspector Karunaratno and Sergeant Wimaladasa aftertho close of the caso for tho dofonce in an}r way afFcctcd tho decision oftho jury to convict tho appellant.
Wo therefore dismiss tho appeal and affirm tho conviction andsentence.
Appeal dismissed.