71 NLR 169

• Jurisdiction: Sri Lanka
• Court: Supreme Court (Sri Lanka)
• Citation: 71 NLR 169
• Date: 24 March 1968
• Case Number: NLR71V169
• Type of Document: Case report

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1968 Present: T. S. Fernando, J. (President), Tambiah, J.,
and Sirimane, J.

PAULINE RUTH DE CROOS, Appellant, and THE QUEEN,
Respondent

C. C. A. APPEAL NO. 18 OF 1968, WITH APPLICATION NO. 22 OF 1968

S. C. 73/67-M. C. Colombo South, 68959/ A

Trial before Supreme Court-Admission of bad moral character of the accused- Misreception of inadmissible evidence-Circumstances when the Court of Criminal Appeal trill nevertheless dismiss the appeal of the accused-Court of Criminal Appeal Ordinance, ss. 2 (6), 5 (1), 5 (2)-Evidence Ordinance, ss. 54,167-Criminal Procedure Code, ss. 6, 234.

The proviso to section 5 (1) of the Court of Criminal Appeal Ordinance which states that the Court of Criminal Appeal may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss an appeal if they consider that no substantial miscarriage of justice has actually occurred, would be applicable in case of misreception of inadmissible evidence if it is evident that no reasonable jury, after being properly directed, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken.

In an indictment against the accused-appellant as the 1st accused and another as the 2nd accused, both accused were charged jointly (1) with conspiracy to commit or abet the offence of murder of a boy who was a son of the 2nd accused, and (2) with murder of the said boy. On the sixth day of the trial the 2nd accused was discharged, in terms of section 234 (1) of the Criminal Procedure Code, on the ground that there was no evidence upon which he could be convicted. The trial proceeded thereafter against the 1st accused only and she was found guilty by the jury, by a divided verdict of 6 to 1, of the offence of murder. The main ground of the present appeal was that, before the 2nd accused was discharged, certain evidence was led or elicited about an improper association between the appellant and the 2nd accused and her " affairs " with other men. It was urged that the appellant was at least entitled to a fre3h trial on the ground that this evidence of bad moral character would have been rendered inadmissible by section 54 of the Evidence Ordinance if the Crown had not recklessly joined in the indictment the 2nd accused who was discharged. It was submitted that the fact that the trial Judge had cautioned the jurors to disregard the evidence was incapable of erasing from their minds the prejudiced impression caused by it.

Held by T. S. FERNANDO, J., and TAMBIAH, J., (SIRIMANE, J., dissenting), that, in the present case, notwithstanding the fact that the jury was in possession of evidence tending to show that the appellant was a girl of loose morals, which evidence could not have been led in a case against her if she had stood her trial alone, there was no substantial miscarriage of justice. The proviso to section 6 (1) of the Court of Criminal Appeal Ordinance was therefore applicable.

Held further, that the discharge of the 2nd accused before the prosecution had technically closed its case did not any prejudice to the 1st accused.

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APPEAL against a conviction at a trial before the Supreme Court.

G. E. Chitty, Q.C., with E. B. S. B. Coomaraswamy, A. M. Coomaraswamy, Anil Obeyesekere, Kumar Ameresekere, P. Chakradaran and Tyrone Fernando, for the accused-appellant.

V. S. A. Pullenayegum, Senior Crown Counsel, with Kenneth Seneviratne and L. D. Guruswamy, Crown Counsel, for the Crown.

Cur. adv. vult.

March 24,1968. T. S. FERNANDO, J.-

The Attorney-General presented to this Court an indictment containing two charges against the appellant as the 1st accused and' another as the 2nd accused alleging (1) conspiracy to commit or abet the offence of murder of one Ramdas Gotabhaya Kirambakanda in consequence of which conspiracy the murder was alleged to have been committed (S. 113B read with SS. 296 and 102 of the Penal Code) and (2) murder of the said person (S. 296). The deceased Gotabhaya was a school-boy of the age of 11 years and a son of the 2nd accused. The appellant is an unmarried girl living with her parents at Dehiwala in which town the 2nd accused also resides with his family. The two accused were tried on this indictment before a judge and jury. After five days of evidence had been recorded, counsel for the 2nd accused objected to the admissibility of a certain piece of evidence sought to be led by the Crown and legal argument on its admissibility was permitted in the absence of the jury. At the time of adjournment on the fifth day, the trial judge, again in the absence of the jury, addressed Crown Counsel as follows:-

" I certainly will have to direct the jury that this cannot in any way add very much unless on the rest of the evidence you have made out a case."

On the morning of the sixth day, Crown Counsel addressed the Court and said:-

" Your Lordship indicated that, even if you were disposed to permit that item of evidence that I was seeking to lead, Your Lordship will direct the jury that that evidence has very little weight or value as such against the 2nd accused. In those circumstances, it is not my intention to pursue the application. "

A little later, the learned judge said to Crown Counsel:-

" So that this alleged statement just hangs in the air without any impact. I understand from your opening that apart from this little item of evidence you are relying solely upon subsequent conduct. " The record of the proceedings thereafter reads as follows:-

Crown Counsel: "Yes, my Lord. The various items relate to this subsequent conduct that I was seeking to urge as

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being circumstances against him. If Your Lordship is of the view that the conduct after the event will be of no avail, I do not wish to pursue my application. "

Court: " It is certainly of no value whatsoever unless the other evidence is trusted. Now that I am aware of the important evidence I think I should state at this stage that there is no case against the 2nd accused. In this situation there may have been subsequent misconduct despite the innocence before, but your case is based on subsequent conduct. "

Crown Counsel: " If that be Your Lordship's view, I will not pursue my application. "

The jury was then recalled, and the Court addressed them as follows :-

" If you remember, at the commencement of this case I said to you that you are the judges in this case and you will ultimately have to decide the guilt of the accused; but there is a power which I have, namely, to decide whether there is evidence upon which you can convict. I have now become aware of the sort of evidence which the prosecution proposes to lead as against the 2nd accused. I think you will realise that thus far, if the evidence implicates anyone at all, the evidence you have so far heard is directed against the 1st accused, and counsel has informed me of the nature of the evidence which he can lead, if he wishes, against the 2nd accused. I am satisfied that there will be no evidence upon which a jury can reasonably convict the 2nd accused. Therefore, I direct you now to enter a verdict of not guilty against the 2nd accused. You are bound to follow that direction. "

The verdict was accordingly signed by the foreman, and it was communicated to the 2nd accused and he was thereupon acquitted and he left the dock.

If we may say so with respect, this Court shares the opinion of the learned trial judge that there was no evidence upon which a jury could reasonably have convicted the 2nd accused. We indicated as much to Crown Counsel who argued at this appeal. He tabulated for us all the items of evidence the Crown had relied on against the 2nd accused and contended that the most important item of evidence was that over which the legal objection noted above had been raised, and in respect of which the trial judge said " this cannot in any way add very much unless on the rest of the evidence you have made out a case. " Indeed, I think the 2nd accused should not have been put on trial at all. An accused person should not be put to the expense and harassment of a trial on a charge of murder unless it can fairly be said that the evidence is such that, if believed, a reasonable jury could convict him of the offence charged or of a lesser offence. The Legislature has placed the Attorney-General between the committing Magistrate and the court of trial in the interests of justice, and those interests can be secured not only by safeguarding

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the interests of the state but also, if may say so. by looking at the other side of the medal as well, namely, the interests of the accused person.

It may be technically correct to say that a trial judge cannot direct the jury to return a verdict of not guilty in respect of any person indicted until the prosecution has closed its case-vide section 234 of the Criminal Procedure Code. Certainly, according to English Criminal Procedure it is not permissible for a court to quash an indictment on the ground that, if the depositions are examined, it would be found that the evidence for the prosecution would be insufficient to support a conviction-see Regina v. Chairman, County of London Quarter Sessions, ex parte Downes[¹(1954) 1 Q. B. 1.] Here there was no quashing before trial; had it been otherwise, section 6 of our Criminal Procedure Code may have rendered the English law applicable. The procedure actually adopted by the learned judge in this case is, to our knowledge, not infrequently resorted to by judges in this Country when it becomes apparent to the Court and counsel that to continue is to waste precious time and that there is no purpose in " flogging a dead horse ". We ourselves have no desire, at this stage of the development of the practice of stopping trials at their virtual though not their technical end, to insist on technicality to the point almost of sanctifying it. Nor do we think...