029-NLR-NLR-V-73-M.-K.-EDWIN-Appellant-and-THE-QUEEN-Respondent.pdf
Edwin v. The Queen
123
[Court ov Criminal Appeal]
1970 Present: Sirimane, J. (President), Samerawickrame, J.,and Wijayatilake, J.M.K. EDWIN, Appellant, ami THE QUEEN, RespondentC. C. A. 129 ok 19G9, with Application 1S6S. C. 121 !6$A—M. C. Elpitiya, 6496Trial before Suprcmr Court——S a mm ary trial on alternative chargee for givingfalse evidence—Rules apjdicuhle—Penal Code, s. 100—Criminal ProcedureCode, ss. 155, 430.
After a trial beforo the Supremo Court was concluded, the ritne3s-appellniitwas indictod and tried summarily boforo tho same Judge and Jury undersection 190 of tho Penal Code, road with section -139 of the Criminal ProcedureCode, for liaving givon falso ovidcnco by contradicting the evidonco previouslygiven by him at the inquiry, boforo the Magistrate.
124
S1RIMAXE. J.—Edwin r. The Queen
Held, (i) that “ tho inquiry ” contemplated in section 439 of tho Criminal ■Procedure Codo is tho non-summary inquiry which precedes tho trial and whichCommences undor section 155 of tho Criminal Procedure Codo. Accordingly,the indictmont for giving fnlso evidence should not havo boon founded on nnyevidence given by tho witness at the inquest hold by tho Magistrate) boforo the'non-summary inquiry'under soct-ion 155 commenced.
(ii) that tho highly penal provisions of sections 439 and 190 must bo used 'with groat care and circumspection. " They should only bo used in such case3 •whore a witness in giving ovidcnco has shown such a contemptuous disregardV – for tho sanctity of tho oath tliat tho contradictions are not only on material.
' v' points, but point to tho necessary inferenco that tho witness was intentionally •giving false evidonce.” Furthermore, tho wholo of a witness's ovidcnco mustbo looked into in deciding whether tho contradictory statements are material-'. and intentionally, falso. A question and nnswer taken in isolation can be verymisleading..-••
A.PPEAL by a witness against a conviction for giving false evidence at,a trial before the Supreme Court.^ -'"/■ ’’
S. Gunasekera, with B. B. D. Fernando and Miss C. M. M. Karunaraln e(assigned), for-tho witness-appellant.-1 r- v
Ian Wikramananayake, Crown Counsel, for the Attorney-General.
Cur. adv. vult.April 23, 1970. Sirimane, J.—The appellant was indicted under Section 190 of the Penal Code readwith Section 439 of the Criminal Procedure Code which provides for thesummary trial by jury of a witness who contradicts the .evidencepreviously given by him at the magisterial inquiry, -at the trialbefore the .Supreme Court. He was convicted and sentenced to 5years’ rigorous imprisonment..■ V;
In the main case, one Jinadasa was charged with the murder of onePodde, and the appellant was the main witness for the Crown. Broadlyhis evidence was that the deceased had been pursued by Jinadasa and cuton his leg with a sword in the compound of the appellant’s house. Hethen raised cries, people collected, he tied a tourniquet and after someunsuccessful efforts to get a conveyance to take the injured man tohospital he went and informed the Police. His evidence at the magis-terial inquiry was, in essence, exactly the same. His cross-examinationopened with the suggestion being put to him—no doubt with somedramatic effect—that he was the murderer, and thereafter certain con-tradictions between his evidence at tho trial and previous statements tothe Magistrate were put to him.
SIRIMAXE, J.—Edwin v. The Queen
125
The learned trial Judge appears to have been greatly impressed by thesuggestion made by the defence, for as he later told the jury, though acontradiction “ would be of little significance ” in certain circumstances,yet against the background of the suggestion “ the matter would seem toassume some reality.”
When a witness contradicts himself very badly it is usual for Counselfor the defence to make an application to the judge in the absence of thejury, to ask the jury whether they wanted to continue. Sometimes thejudge himself may put the question to the jury. In the course of thecross-examination in this case the learned judge asked the Crown Counsel," Have you got any other material witness ? ". On receiving an answerin the negative, the learned judge said, “ Then there is no purpose inproceeding with the case ”. He then turned to the jury and asked them,
“ You have heard the evidence of this witness on whom the Crown relies.Will you consider the matter and let me know ? ”. The answer of theforeman was as one would expect, and the accused in that case wasdischarged. He then told the appellant that he (the appefiant) would beindicted for giving false evidence and added, “ I strongly hold that uponyour evidence an innocent man has been kept in remand for IS monthsIt was against this background that the appellant was tried before thesame jury on an indictment which set out six items of contradictoryevidence.
The first three are founded on evidence given by the appellant at theinquest held by the Magistrate (when the accused Jinadasa was absent-and according to the Police couldnot be found) i.a.,before the non-summaryinquiry under Section 155 of the Criminal Procedure Code commenced.
Under Section 430 the witness in giving evidence before the SupremeCourt, mist contradict “the evidence previously given by him at theinquiry before the Magistrate ”. We are of the view that “ the inquiry ”contemplated in the Section is the non-summary inquiry which precedesthe trial ami which commences under Section 155 of the CriminalProcedure Code. It docs not refer to the inquest. So much of thecharge ar relates to the first three items of the contradictory evidencemust therefore fail.
The other three items arc numbered 4, 5 and G in the indictment.
Before dealing with these we would like to make some general obser-vations. The evidence of witnesses, more often than not is interpretedand not recorded in the language in which it is given That was the casehere. Some inaccuracies arc bound to creep in as it is seldom that twointerpreters employ the same phraseology. There is also the fact thatwitnesses give evidence in the Supreme Court long after they have doneso at the inquiry (in tins case the trial took place nearly a year and a halfafter the inquiry) and the witnesses’ memory on some point may be faulty.Witnesses often give answers in language which is inaccurate or imprecise,J147S0 (7/70)
128SIR 1 MANE, J.—Edtcin v. The Queen ’ '
or answer long questions with a “30s ” or “no” without under-standing their import. They themselves do not use the language inwhich the question is framed and which appears on the record as port ofa narrative. So that, there is hardly a ease in the Assizes in which thedefenoo fails to mark some contradiction. The highly penal provisions ofSections '439 and 190 must therefore be used with great care and cir-cumspection. They should only be used in such eases where a witness, ingiving evidence before a Court of Law has shown such a contemptuousdisregard for the sanctity of the oath that the contradictions ore not onlyon material points, but point to the necessary inference that the witnesswas “ intentionally giving false evidence ”. We also think that the wholeof a witness’s evidence must be looked into in deciding whether thecontradictory statements are material and intentionally false. Aquestion and answer taken in isolation can be very misleading…■ ^
The contradictory evidence in item No. 4 is this :-^ A.t the magisterialinquiry the appellant had said, “ I knew Poddc for the last 12 or 13 .years In his evidence before the jury he had said at one stage that lioknew Podde for about a year.. . .
Now, at the magisterial inquiry the suggestion had been made in cross-examination that, the deceased was-intimate with the appellant’s wife,and further that he was keeping as his mistress the appellant’s cousin.Both suggestions were vehemently denied. In re-examination, apparentlyin order to refute the suggestion that the apijellant was angry with thedeceased he had been asked how long ho knew the deceased and he hadsaid for the last 12 or 13 years, and that he had not “fallen out ” withhim. The evidence given by the appellant in the Supreme Court, isbefore us and. was a production in the case, and we find that when thequestion, “ How many years prior to the incident did you know Podde ?”was put to him, he answered, “ For about 7 or 8 years I am there Theobvious implication is that from the time he came to the village about 7or 8 years prior to the incident he knew Podde in the sense that he was -aware of his identity. When the question was repeated apparently withsome emphasis on the word “ Know ”, he answered, “ About one year ”.Then this question was put immediately afterwards,: Q- “ It would notbo correct to say that you knew Podde well ?A.. 1 “ I knew Podde
well for about one year ”.• .
Is there then a material difference in the evidence ? It is not as if thewitness referred to “ 10 or 12 years ” before the suggestion of intimacywith his wife was made, and was now trying to reduce the period to meetiho suggestion. The evidence makes it clear that w hat the. witness saysis, that ho knew the deceased for a fairly long period of time, but knewhim a veil only fot a period of about a year. The learned judge in hischarge-did not refer to the evidence that witness has said that ho knew *-Podde in the village for 7 or 8 years.
SIRIMANE, J.—Edwin v. The Queen
127
I have already set out the material evidence of the appellant both inthe Supremo Court and at the magisterial inquiry, viz., that the deceasedwas pursued by Jinadasa and cut in bis compound, that he raised criesand people collected thereafter. The first person, be met was onePremadasa. In cross-examination in the Magistrate’s Court he had beenasked whether lie told " the people ”, meaning obviously the people whocollected there, that it. was the accused Jinadasa who had cut thedeceased. In this context he is recorded as having said “ I told thepeople that the accused had cut Poddc. Premadasa was there but YVije-dasa was not tlierc. There were about 10 or 15 people at tho timo Poddowas cut. by the accused. There was a crowd.” Surely, he was referringto a time shortly after the alleged cutting, when he used the words “Atthe time Podde was cut by the accused ”. AVhen, in cross-examination inthe Supreme Court it was suggested that he had said that the cutting ofPodde had taken place in the presence of 10 or 15 people, he deniedhaving said so. A consideration of the entire evidence indicates thatthero was no real contradiction at all.
The last item of contradictory statements consists of two denials bythe appellant of statements made before the Magistrate :
(а)“ I am aware that the accused aud the deceased are friendly.”
and
(б)“ I am ill-disposed towards Podde, not that I am angry withPodde, but he does not associate with me.”
These were denials made in the course of a very lengthy cross-examinationin the.Supreme Court. But in the course of the same cross-examinationthe witness had also said :
(a) “ I knew of no animosity at all between Podde tho deceased andthe accused.” and
(5) that lie knew Podde “ a little ”, that he had never come to hishouse and that he had spoken to him 7 or S times in the courseof a year.
Even in tho light of the suggestion made the contradictions can hardlybe said to be material. The failure of the trial judge to tell the jury notto look at the contradictions isolated from tho rest of the. evidence, and'his failure to draw the attention of the jury to that evidence which wasproduced in the case, is in our view a non-direction which would amountto a misdirection.
The learned trial judge as stated earlier told the jury in regard to thediscrepancy between lOor 12 years and one year, that it was of significancebecause the defence alleged that the appellant was the killer. He alsotold the jury with reference to other discrepancies in the evidence at thoinquest: ** This is a material contradiction having regard to the defenceposition that it was this accused who killed the deceased.”
123
Rajaratnam u. Commissioner of Inland Revenue
And again, " you will appreciate that in the light of the defencesuggestion in the earlier case that it was this accused who did the deceased
to death, in that case, the questionwould be a circumstance of
great importance.”
Having thus laid emphasis on the suggestion that the appellant was amurderer, we think he should have cautioned the jury that it was only a-suggestion, and that they should not act on the footing that he was infact responsible for the murder of the deceased. Tin's again, in our viewis a similar non-direction.
Having regard to the evidence, we were of the view that the verdict ofthe jury, was unreasonable, and therefore quashed the conviction andacquitted the appellant.
Appeal allowed.