King V. Aiyadurai Et Al.,

[COURT OF CRIMINAL APPEAL]

1942 Present: Howard C.J. (President), Keuneman and
de Kretser JJ.

THE KING v. AIYADURAI et al.

19-M. C. Mallakam, 22,965.

Evidence called by Judge-Comment by Counsel on absence of Crown witness -Matter arising ex-improviso-Fairness to accused--Criminal Procedure Code, s. 429.

In the course of his address to the Jury, Counsel for the defence told them that a certain witness, whose name appeared on the back of the indictment, had not been called and that he was entitled to ask them to draw an inference adverse to the Crown from that fact. He also asked the Jury to infer that Crown Counsel had not called him because he knew that his evidence would be inconsistent with the case for the Crown.

Held, that the Judge was justified in the circumstances in calling the witness himself and allowing him to be cross-examined by the Counsel for the defence.

Fresh evidence called by a Judge, except upon a matter which arises ex-improviso, is irregular and will vitiate a trial unless such evidence Was not calculated to prejudice the accused.

The power given to Courts under section 429 of the Criminal Procedure Code is not incompatible with the principle laid down by the English Courts..

THIS was a case heard by a Judge and Jury before the first northern Circuit. .

N. Nadarajah, KC. (with him S. Nadesan and M. M. Kumarakulasingham), for all the accused, appellants.-The right of the Judge to call fresh evidence, after the close of the case for the defence, is limited to something arising ex-improviso-R. v. Charles 1[ (1941) 42 N. L. R. 409.]. No situation arose ex-improviso in the present case which could justify the calling of further' evidence. The remarks of defending Counsel in regard to the failure of the Crown to call Aiyadurai and to the inference that could be drawn from it were relevant under section 114 (f) of the Evidence .Ordinance. If those remarks were misleading, the learned Judge could have stated so in the summing-up. The calling of the witness, Aiyadurai, after defending Counsel had begun to address the Jury, was not only unnecessary but also caused serious prejudice to the accused and. tended to strengthen the case for the prosecution. .

There was no proper direction as to the onus of proof or that the 'accused was entitled to the benefit of a reasonable doubt. See Lawrence v. The King[ A. I. R. 1933, P; C. 218. 13 C. L. Rec. 111.].

E. H. T. Gunasekera, C.C., for the Crown:-There are' two reasons why R. v. Charles (supra) cannot help the appellants. Firstly, the witness Aiyadurai was called by Court in consequence of a situation which arose ex-improviso. Secondly, R. v. Charles is a decision which may well be reconsidered.

There, is a difference between English law and our law in regard to the point under consideration. Our law is contained in two statutory provisions, viz., section 429 of the Criminal Procedure Code and section 165 of the Evidence Ordinance. These two sections show that in Ceylon a criminal trial preserves an .. inquisitorial" character. See Kenny's Outlines of Criminal! Law (1936) p. 170 footnote (1) ; Woodroffe and Ali's Law of E1Jidence (1931) p. 1044; 29 Cr. L. J. 740; 31 Cr. L. J. 768; 25 Cr: L. J. 354. Even in England the dictum of Tindal C.J., in Frost, although it was followed in Dora Harris[ (1927) 20 Cr. App. R. 86.], Stanley Liddle[(1928) 21 Cr. App. R. 3] Me. Mahon[(1933) 24 Cr. App. R. 95 at 97.] and Norman Day[(1940) 27 Cr. App. R. 168 at 171], was not invariably followed. See, for example, R. v. Crippen[(1911) 5 cr. App. R. 255 at 255]; Isaac Foster.[(1911) 6 Cr. App. R. 196.], William Jackson[(1919) 14 Cr: App. R. 41.] (Counsel was stopped by the Court).

N. Dadarajah. R. C., in, reply, cited Ponniah v. Abdul Cader[(1937) N. L. R. 281.]' and Vandendriesen v. Houwa Umma[(1937) 39 N. L. R. 65.].

Cur. adv. vult.

May 25, 1942. HOWARD C.J.-

This case involves appeals on questions of

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