JUDGMENT

Suffian LP (delivering the judgment of the Court):

This is a reference under s. 66(1) of the Courts of Judicature Act No. 7 of 1964 reserving for our decision the following questions of law of public interest:

(1) Whether a person charged with a criminal offence or offences triable summarily before a subordinate Court is entitled in law at any, and if so, at what stage after his arrest to obtain copies of statements of witnesses recorded by the police in the course of investigations under s. 112 of the Criminal Procedure Code.

(2) Whether a person charged with a criminal offence or offences is entitled to obtain a copy of a statement made by him to a police officer under the provisions of s. 112 of the Criminal Procedure Code.

At first blush this was an attempt by Encik Sri Ram, Counsel for the applicant ("accused"), to obtain copies of statements made by witnesses for the prosecution ("police statements") in advance of the trial - pretrial discovery, as in a civil trial.

But during the course of arguments he narrows down the scope of the questions and says that all he is interested in is this: a witness called by the prosecution is in the box being cross-examined. Counsel applies for a copy of his police statement in order to impeach his credit under s. 145 of the Evidence Act("the Act"). Encik Sri Ram contends that Counsel is entitled to a copy.

Section 145 of the Act reads:

145(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Section 155(c) is also relevant. It reads:

The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him-

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

If such an application had been made when the old s. 113(ii) of the Criminal Procedure Code("the Code") was in force, then, the court, if it thought it "expedient in the interest of justice", might direct Counsel for the accused to be furnished with a copy.

That s. 113(ii) read (omitting irrelevant words):

When any witness is called for the prosecution, the Court shall, on the request of the accused, refer to any statement made by such witness to a police officer in the course of police investigation, and may then, if the Court thinks it expedient in the interest of justice, direct the accused to be furnished with a copy thereof, and such statement may be used to impeach the credit of such witness in the manner provided in the Evidence Enactment.

But the old sub-section (ii) has been deleted from the new s. 113 of the Code introduced by the Criminal Procedure Code (Amendment and Extension) Act - Act 324.

Nevertheless in our view as ss. 145 and 155(c) of the Act have not been repealed, they must be given effect to, and cannot be treated as dead letters. Otherwise, Counsel who has a hunch that a prosecution witness has in his oral evidence departed from his police statement may not be able to take advantage of the Evidence Act which allowed - and still allows - the defence to impeach his credit. Also, in the interest of justice the Court would want to know if a witness has departed significantly from his police statement.

Encik Sri Ram cites s. 5 of the Code, which provides that where there is a lacuna in our law relating to criminal procedure, the Court should apply English law, in so far as the same shall not conflict or be inconsistent with the Code and can be made auxiliary thereto. He then cites various English authorities showing that in the circumstances set out in the quest