THE QUEEN v. DON WILBERT

012-NLR-NLR-V-64-THE-QUEEN-v.-DON-WILBERT.pdf


SINNETAMBY, J.—The Queen v. Don Wilbert
83
1982[In the Court of Criminal Appeal]
Present: Basnayake, C.J., (President), Sansoni, J., and
Slnnetamby, J.f
THE QUEEN a. W. DON WILBERTAppeal No. 64 of 1961, with Application No. 66
S. C. 18—M. C. Colombo, 33882/ACriminal procedure—Evidence—Cognizable offence—Statement made by accusedperson to police officer during investigation—Admissibility—Inspection ofscene of offence—Procedure—Fresh evidence—Admissibility after cqse fordefence is closed—Evidence for defence■—Scope of rule that accused should .becalled before any of his witnesses—Criminal Procedure Code, ss. 122 (3), 238, 429.
Except for the limited purpose contemplated by section 27 of the EvidenceOrdinance, oral evidence of statements made by an accused person to a policeofficer in the course of an investigation under Chapter XU of the CriminalProcedure Code cannot be proved by the prosecution, even as admissions : theymAy, however, be used to discredit a witness under section 122 (3),'in whichcase the relevant passages should be put to the witness only after he enters thewitness box and the written record should be produced and marked.
The conducting of experiments at an inspection of the scene of offence shouldbe avoided unless it is necessary to do so in the interests of justice. Inspectionis permissible provided it is done in the presence of the Judge to clarify evidencealready given and is really in substitution of or supplementary to plans andphotographs produced in the case.
It is not open to the Court to call or allow fresh evidence to be led for theprosecution after the cose for the defence has been closed, unless a matter arisesex improviso. (But, where the defence is concerned, a certain degree of latitudeis permitted.)
The rule that an accused person, when he wishes to give evidence, should becalled first into the witness box before his witnesses are called is not a hard andfast rule.
_A.PPEAL against a conviction in a trial before the Supreme Court.
Colvin R. de Silva with Prins Rajasooriya, Tudor Siritvardena andJ. V. C. Nathaniel (assigned), for the Accused-Appellant.
V. S. A. Pullenayegum, Crown Counsel, for the Crown.
Cur. adv. vult.
February 15, 1962. Slnnetamby, J.—
The appellant in this case Wijewickrama Don Wilbert was chargedat the Colombo Assizes with having on 15th May, 1960, committedmurder by causing the death of one Allison Francis Gabriel. The casefor the prosecution consisted mainly of the testimony of Monica Pietersz,her father George Henry Pietersz and her uncle A. Victor Pietersz.The deceased was the intended son-in-law of George Henry Pieterszand was betrothed to Monica’s sister Therese.
84'. SINNT3TAMBY, J.-—The Queen v. Don Wilbert
According to the prosecution, on the day in . question, there was achristening party in the Pietersz household and among the visitors wastho deceased Gabriel. It would appear that shortly after the christeningparty, Gabriel had gone out on his motor oycle and tho family was await- -ing his return before sitting down to lunch. At that time, the accusedis alleged to have caused some provocation by staring at George HenryPietersz as he walked past with uplifted sarong: there seems to. have fbeen some earlier displeasure also. George Henry Pietersz then’ went 'up to him and questioned him. There was an exchange of words followedby a struggle in the course of which George Henry Pietersz was stabbedby the accused to whom his mistress Pathumma had given a knife. GeorgeHenry Pietersz was brought into the house and shortly thereafter,Gabriel came back with a friend on his motor oycle. He questionedtho witness Monica as to what had happened and then questioned theacoused. The upshot of the deceased’s intervention was that the accusedchasod him a short distance and stabbed him near a jak tree just outside •the zinc fence of the house. George Pietersz referred to the earlier .inoident which resulted in his being stabbed and he says that, thereafter,he became unconscious and did not know what happened.
In the course of his evidence, Victor Pietersz said that shortly afterhis brother was stabbed, his niece Coline Pietersz went to inform thopolice. Those incidents are alleged to have taken place sometimebetween 1.30 and 2.00 p.m. Celine Pietersz is alleged to have gone tothe house of one Edwin Peiris and from there telephoned the polioe.The police gave evidence of the steps they took. The accused, accord-ing to the police evidence, would appear to have gone to the policestation and started making a complaint at 2.15 p.m. The police officerwho recorded the complaint, police constable Ramalingam, cannot sayhow he arrived but he saw him come walking into the police station.Celine Pietersz’s message to the polioe was received at 2.18 p.m. and-information was given at 2.19 p.m. to Grandpass police station. Thatmessage was received by Ramalingam while he was recording thecomplaint of the accused.
One of the matters which required the attention of the jury waswhether, having regard to the fact that as Celine Pietersz’s complaintmade at 2.18 p.m. contained no reference to the stabbing of Gabriel andaccused was at tho police station making his complaint at 2.15 p.m. .it was possible for the accused to be the person who stabbed Gabriel :for accused’s statement to be recorded at 2.15 p.m. it is reasonable toassume he arrived there a little earlier.
According to Victor Pietersz, it would appear that Coline Pieterszloft tho house after George Henry Pietersz had been stabbed and shecould not have known anything about the stabbing which occurredshortly thereafter of Gabriel. Nevertheless, in questioning the policewitnesses in regard to the mossago that was received, Crown Counsel
SINNETAMBY, J.—The Queen v. L>on Wilbert
85
formulated the question in such a way as to suggest that Celine Pietersz’scomplaint related to the stabbing of Gabriel. It seems to us that ifCrown Counsel desired to place before the jury any fact relating to thecomplaint of Celine Pietersz, he should have called Celine Pieterszbecause hers was the information they received of an incident—not theaotual stabbing of the deceased—which resulted in their making investi-gations into the actual murder. That, however, was not done. Whenpolice sergeant Charles de Silva was examined, he was questioned byCrown Counsel as follows :—
Q.Did you receive information concerning this case that afternoon ?
Yes.
Q.At what time ?
At 2.40 p.m.
Police sergeant Heenatimulla in the course of the examination inchief stated that he was in charge of .the radio car and was questionedas follows :—
Q.That afternoon, did you receive information concerning thiscase ?
Yes.
Q.At what time ?
A. At 2.19.
Police constable Ramalingam was questioned as follows by CrownCounsel:—
Q.While he (accused) was making a complaint, did you receiveinformation concerning this case 1
A. Yes.
Q.Over the telephone ?
A. Yes.
Actually, the information received was that which was given byCeline Pietersz and referred not to the stabbing of Gabriel which was thesubject matter of the charge but to the stabbing of George Henry Pietersz.The prosecution should have put the matter right by calling CelinePietersz and proving the actual complaint.
* i
The jury could very well have thus been misled into thinking that, at2.18 p.m., Celine Pietersz had given information to the police of thestabbing of the deceased Gabriel. It is, in these circumstances, difficultto understand why Crown Counsel objected to the following questionwhich was put under cross examination to the witness Monica Pietersz :—
Q.Do you now know that your sister had run out of the house andtelephoned the police ?
A. No.
86SINNETAMBY, J.—The Queen v. Don Wilbert
*
Immediately thereafter, the following incident then took place :—
Crown Counsel: I object.
Defence Counsel: Is Crown Counsel calling her ?
Court: Unless Celine is called it will be hearsay.
Crown Counsel: Whether I will call or not I cannot say in advance..
Defence Counsel: If Crown Counsel is not calling Celine, I will call.
Having regard to tho objection thus raised at an early stage of theproceedings, the questions referred* to earlier put by learned Crown to ‘the police witnesses, who were called later, were likely to give a wrongimpression to tho jury of Celine’s complaint. Learned Counsel for theprisoner was obliged to call Celine in order to establish his case which wasto the effect that the accused did take part in the first incident whichresulted in the stabbing of George Henry Piotersz but had nothing todo with the stabbing of the deceased. If, however, the stabbing ofGabriel took place some time after.Celine left the house, the probabilitiesare that the accused was not likely to be tho offender. The defencecase was that if the prosecution case was true, Celine should have known >of tho injury to Gabriel as Gabriel, immediately after the stabbing, :ran roimd through the back entrance of the house and fell near thekitchen door through whioh it was that Celine emerged to proceed toPeiris’ house.
The second ground of complaint is that ovidence was improperly ledof statements made by the accused to the police. The accused madea statement to the police as stated earlier at. 2.15 p.m. That was at atimo when there was no charge against him and may be regardod as ,information given under Section 121(1) of the Criminal Procedure Code.One would have expected the prosecution to produce the writtencomplaint, but for some reason that was not done ; instead, in the courseof cross examination it was marked D. 6 by learned Counsel for theaccused. It would appear that, thereafter, tho accused was examinedin connection with investigations into the charge of murder on 16thMay, 1961, at about 8.25 a.m. by Oliver de Soysa, who in the indictmentis referred to as a sub-inspector of Police. In the course of his exami-nation in chief, Crown Counsel elicited from him the contents of thostatement made by the accused. The defence Counsel objected to thoquestions that were boing put but the learned Commissioner over.-ruledthe objection on the basis that the decision in Regina v. Anandagoda 1 •permitted it. Thereafter, the statement of the accused given in thecourse of this investigation was led in evidence almost in its entirety.This ovidence established two facts. First, that the statement in D. 6to tho effect that the accused was riding a bicycle was wrong in asmuch as in the course of his subsequent statement he said that he waspushing the bicycle ; secondly, that the accused travelled to. the policestation in a taxi cab; a fact which otherwise would not have been established
1 (1960) 62 N. L. R. 241.
SINNETAMBY, J.—The Queen v. Don Wilbert
87
by the prosecution. There was also some reference to parliamentaryelections and the side which the accused supported. The two state*ments, although they were put in as admissions were in fact used by theprosecution to show that some parts of each were contradictory of theother and of the evidence subsequently given by the accused. It wasso utilised even by the learned Commissioner in his summing up. This,in our opinion, was altogether improper. If it was intended tocontradict the accused under Section 122(3) of the Criminal ProcedureCode, the passages should have been put to him only after he enteredthe witness box and the written record should have been produced andmarked.
Having regard to the decision in Queen v. Mapitigama BuddharakkitaThera, H. P. J ayawardena and Talduwa Somarama Thera 1 which isnot yet reported, statements made in the course of an investigationunder Section 122 cannot be used whether they be oral or written exceptfor the limited purpose contemplated by Section 27 of the EvidenceOrdinance. Whatever views may have boon held prior to the decisionof that appeal, it is now clearly established that oral evidence of* state-ments made by accused persons to police officers in the course of aninvestigation under Chapter XII of the Criminal Procedure Code cannotbe proved by the prosecution, even as admissions : they may, howeverbe used to discredit a witness under Section 122 (3).
Apart from that, however, the court should not, hi our view, haveregarded Anandagoda's. case as an authority to permit evidence to beled of admissions so closely connected with the subject matter of thecharge and which may be regarded as part of the same res gestae. Theabove remarks apply with equal force to questions that were put topolice officers with the object of corroborating the evidence of MonicaPietersz and Victor Pietersz. Indeed, in regard to Victor Pietersz’sevidence when he was being questioned about the statement he made tothe police, learned Counsel for the prisoner objected but Crown Counselcontended that he was entitled to prove it under Section 157 of theEvidence Ordinance on the authority of Jinadasa's case 2. The learnedCommissioner permitted that evidence also to bo given.
The third matter in respect of which complaint has been made relatesto the proceedings that took place after the court had decided that thejury should view the scene of the offence. The view in this particularcase took place after the case for the defence had been closed. Section238 j of -the Criminal Procedure Code which applies to what has beendescribed as a “simple view” without demonstrations or evidence at thescene, does not place any restriction on the time at which an inspectionshould (be held. The difficulty in this case, however, is due to the factthat the learned Commissioner caused new evidence to be given whichevidence tended to support the prosecution case. Although Section 238 1
1 S. C. No. 8 M. C. Colombo 23838a, O. C. A. Minutes of 15.1.61. [63 N.L.R. 433}.
« {1950) 51 N. L. It. 529.
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SINNETAMBY, J.—The Queen v. Don Wilbert
does not expressly permit it, there is no objection to witnesses who harealready given evidence attending the inspection and placing themselvesin positions in which they say they had been at the material time or topointing out the positions in which other persons or objects were. Thatkind of evidence is permissible provided it is done in the presence of theJudge and is really in substitution of or supplementary to plans andphotographs produced in the case, vide Karamat v. Queen 1 but, whereit is sought to have an experiment or a demonstration, then one shouldkeep in mind the following observations made in Regina v. ArthurPerera 2:—
“ Generally speaking, the conducting of experiments at an inspection'
of the scene is fraught with danger and should be avoided unless it is' necessary to do so in the interests of justice.”
In the present case, the learned Commissioner caused the clerk ofassize to time the journey between the Grandpass police station and thescene and, thereafter, caused the clerk of assize to give evidence of theactual time so taken. This clearly is new evidence given by a witnessof something in respect of which that witness had not earlier, beforethe case for the prosecution and the defence had been closed, givenevidence. The learned Commissioner, in his summing up, made use ofthat evidonco to invite the jury to accept the prosecution suggestionthat the accused could have proceeded from the scene to the policestation at 2.15 p.m. after having stabbed the deceased and that thejourney should not have taken more than a few minutes. It is to benoted that the clerk of assize was not a prosecution witness and hisname did not appear on the back of the indictment.
The main question for decision in the case, as the learned Commissionerhimself has observed, was “ whether the incident of the stabbing ofGabriel took place at a time when the accused could have taken partin it or whether the accused was at that time at the police station.” Thatwas the most important question which confronted the jury. Theevidence of Celine was that her complaint related to only the stabbingof her father. That message was received by the police at 2.18 p.m.Celine has given an explanation for that delay. The jury has to decidewhether that was acceptable. The accused’s case was that he rushedto the police station immediately after the incident in which GeorgeHenry Pietersz was stabbed. If Celine did not mention the stabbingof Gabriel in her statement, could it be that the stabbing as suggestedby the defence was done by somebody else ? Even without this additionalevidence, the jury would have been justified in concluding that theaccused had actually taken part in the murder and then rushed to thepolice station but this additional evidence was led to strengthen thecase for the prosecution after both the prosecution and defence hadbeen closed.
11956 Appeal Gases 256.
* {1966) 67 N. J&. R, 316,
SINNETAMBY, J.—The Queen t>. Don Wilbert
89
Generally speaking, however, the rule in regard to this matter is asstated as follows by Lord Chief Justice He wart in Rex v. Liddle1 approvedand followed in Rex v. Day 8:—
“ Nothing has suddenly emerged which required the calling ofwitnesses, and the circumstances in which the witnesses were calledwere such as gravely to imperil the defence and put the defence atan unfair disadvantage.”
It makes no difference that such evidence was called by the Commis-sioner and not by the prosecution. It was only when a matter arisesex improviso that evidence in regard to it may be given in rebuttal.That is not what happened in the present case. In Regina v. John Owen 3,Chief Justice Lord Goddard made the following observation :—
“ Now we do not desire in any way to limit the discretion of a judge
to admit evidence for the prosecution after the case for the defence
has been closed, where it becomes necessary to rebut matters which
have been raised for the first time by the defence ”…. and
•
“ The theory of our law is that he who affirms must prove, andtherefore it is for the prosecutor to prove his case, and if there is somematter which the prosecution might have proved but have not, it istoo late, after the summing-up, to allow further evidence to be given,and that where it might have been given by one of the witnesses alreadycalled or whether it would necessitate, as in Rex. v. Browne J, the callingof a fresh witness. ”
This rule in regard to the calling of fresh evidence is strictly observedonly when such evidence is intended to support the prosecution casebut where the defence is concerned a certain degree of latitude is per-mitted and in Andrew John Sanderson 5 the Court of Criminal Appealreferred to O-ioen’s cose but permitted evidence to be called after thesumming up by the learned Judge and distinguished it from Owen's caseon the ground that here the extra “ leave and liberty was extended tothe defence ”. In Queen v. Mendis Appu and another 6 the Court ofCriminal Appeal in Ceylon held that Section 429 of the Criminal ProcedureCode which authorises the court to examine a person at any stage of thejudicial proceedings should be used with caution and the court shouldtake care not to leave any room for an impression that it is using itspowers under that section to help the prosecution to discharge the burdenthat rests upon it. In the present case, it was obvious that the learnedCommissioner in creating and leading this fresh evidence was helpingthe prosecution to discharge its burden.
One other point remains to be considered. In the course of the crossexamination of the witness Police Sergeant de Silva, he stated thatbefore he left for the scene of the offence the accused had been taken *
*20 Or. Appeal Repts. 106.
6 37 Cr. Appeal Repts. 32.
60 C. L.W. 11.
1 21 Cr. Appeal Repts. 3.
* (1940) 1 Appeal Cases 402.9 (1952) Q. B. 362.
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SINNETAMBY, J.—The Queen v. Don Wilbert
into custody at the police station. The learned Counsel for the defencethen put the following question :—•
Q. If Ramalingam says he recorded this man’s statement" at
2.15 p.m
He was interrupted by Court and the incident detailed below took placo.
Court: Are you calling Ramalingam ?
Defence Counsel : If my learned friend is not calling him, I will callhim, My Lord.
Crown Counsel: My learned friend cannot put statements made in thelower court. My learned friend is giving evidence from the bar. I willhave to cross examine him.
Court: You will have to recall this witness if Ramalingam is givingevidence.
The observations of the Court make it quite clear that the Courtwas quite willing at that stage to permit the defence Counsel to recallpolice sergeant Silva after Ramalingam had given evidence. This, ithad a right to do under Section 429 of the Criminal Procedure Code.It seems to us, however, that cross examination of the kind which thedefence Counsel contemplated is perfectly legitimate and permissiblewhen it touches the credibility of a witness, particularly when an under-taking is given that Ramalingam would be called. In cross examination,a certain amount of latitude is permitted which latitude would not bepermitted in examination in chief or re-examination, vide Amir All’scomments under Section GO of the Evidence Act (9th ed.) page 51$.
In any event, Ramalingam was subsequently called but when learnedCounsel reminded the Court that sergeant Silva had to be recalled, sothat the question he intended to put earlier may now be put to the witness,the Court made a curious order. It stated that sergeant Silva wouldnow be a witness for the accused and he should be called only afterthe accused had given evidence. In other words, sergeant'Silva ceasedto be a prosecution witness and had to be recalled only as a defence wit-ness. In our opinion, this ruling was incorrect. Sergeant Silva was a pro-secution witness and he should have been recalled before the prosecutionwas closed, particularly, in view of what transpired earlier. There maybe instances when the defence * may find it necessary to call or recall •a witness whose name appears on the back of the indictment but in thiscase the learned Commissioner having expressly told Counsel for thedefence that he may recall him after Ramalingam had given evidence,there was no justification for refusing the application of the learnedCounsel to continue the cross examination of the witness.
When the learned Counsel for the defence opened his case, in viewof the earlier ruling by the learned Commissioner,, he was obliged tocall the accused first, even before sergeant Silva. It is no doubt correctthat the accused person ought to be called first into the witness boxbefore supporting witnesses who testify to the same facts are" called ;otherwise, his evidence will be of very little value. This ruling was
Attorney-General v. Paranavithana
91
given by the Court of Criminal Appeal in Queen v. Tennakone Mudiyan-selage Appithamy 1 wherein My Lord the Chief Justice quoted the obser-vations of Lord Alverstone in Stinie Morrison 2 to the following effect:—
“ In all cases I consider it most important for the prisoner to becalled first. He ought to give his evidence before he has heard theevidence and cross examination of any witness he is going to call.”
These observations were made by Lord Alverstone in the course of argu-ment when Counsel for the appellant was referring to the evidence ofan alibi which the defence sought to prove by the testimony of otherwitnesses. The Lord Chief Justice inquired from Counsel how thosewitnesses were called before the prisoner himself gave evidence and thenmade the observations referred to. It did not form part of the judgmentsubsequently delivered and was intended to apply to the facts of thatcase and not as a hard and fast rule. One can conceive of cases wherein the course of evidence given by witnesses for the defence the needto call an accused person, which did not earlier exist, may suddenly arise.In such a case to refuse him the right to give evidence would amountto a denial of justice. His evidence, no doubt, would be subjectto the obvious infirmity that he is in a position to shape his evidenceaccording to what he has already heard and it may be of very little value.A Judge would be entitled, in appropriate cases, to so direct a jury,but we do not think an accused person should be denied the right togive evidence altogether in such a situation. Indeed, if his evidenceis on matters with reference to which his witnesses have not testifiedat all, it would make no difference whether he gave evidence first ornot. The general rule, however, is for the accused to give evidencebefore his witnesses.
We are satisfied, having regard to the matters to which we have adver-ted, that the verdict should not be allowed to stand. We accordinglyset it aside and order a new trial.
New trial ordered.