King V. Geekiyanage John Silva

[COURT OF CRIMINAL APPEAL.]

1945 Present : Howard C.J., Keuneman and Jayetileke, JJ.

THE KING v. GEEKIYANAGE JOHN SILVA.

84-M. C. Panadure 27,675.

Accused's failure to give evidence-Charge of murder-Judge's direction that failure to give evidence is an element that may be considered-Proof of case beyond reasonable doubt-Principle to be applied.

Where in a charge of murder the presiding Judge directed the jury " that the failure of the accused to give evidence was an element that they may take into consideration in discussing whether the Crown has proved the case beyond all reasonable doubt- ",

Held, that there was no misdirection in law.

The King v. Duraisamy (43 N. L. R. 241) distinguished.

It is within the discretion of a Judge to comment on the failure of an accused person to give evidence and the Court of Criminal Appeal will not generally interfere with that discretion.

The comments of the Judge on an accused's failure to give evidence should be confined to those cases in which there are special circumstances which an accused only can explain and which therefore call for an explanation by him. The failure of an accused to give evidence, though not amounting in law to corroboration of the story of the prosecution, may enable a jury to act where they would not otherwise have done so.

APPEAL against a conviction by a Judge and jury before the 4th Western Circuit 1944.

G. E. Chitty (with him S. E. J. Fernando and T. Paramsothy) for the appellant.

E. H. T. Gunasekera, CC., for the Crown.

Cut. adv. vult.

February 12, 1945. HOWARD C.J.-

The only substantial point in this appeal which is from a conviction on a charge of murder is whether the learned Judge has misdirected the jury in the following passage that occurs on pages 26-27 of his charge: -

" Let us see what evidence, is called for the defence. The prisoner does not give evidence. I have told you and Counsel, both for the defence and the Crown, have told you that the burden of proving the guilt of the accused rests upon the Crown, and I have told you that there is no obligation upon the prisoner to establish his innocence. Then you ask yourselves, "Has the Crown proved the case? ". Have they satisfied you beyond reasonable doubt, first of all, that the prisoner was the man who caused the fatal wound, and secondly, that he had the specific intention, or in the alternative, the knowledge about which I have addressed you ? If you ask yourselves that question naturally you will say to yourselves, " Here is the evidence of two eye-witnesses. What is the evidence for the defence ? ".

Whereas the accused need not give evidence or say anything at all, the fact that he has not given evidence and contradicted the evidence of the two eye-witnesses is an element which you will be entitled to take into consideration when you are discussing the question, " Has the Crown proved the case ? Has the Crown satisfied us beyond reasonable doubt."

Mr. Chitty, on behalf of the appellant, has contended that the direction, to the jury that the fact of the appellant not having given evidence and contradicted the evidence of the two eye-witnesses is an element which they will take into consideration when they are discussing the question, " Has the Crown proved the case ? Has the Crown satisfied us beyond reasonable doubt " amounted to a misdirection. In support of this, contention Mr. Chitty cited the case of The King v. Duraisamy 1[ 43 N.L.R. 241.]. In that case also the accused failed to give evidence and in commenting on that fact the learned Judge told the jury that on evidence being adduced, which implicated the accused, the fact that he had not given evidence entitled them to draw an inference against him. The Judge did not explain the nature of the inference. He also said that in deciding the Crown case, whether it had been established beyond reasonable doubt, the jury were to take notice that

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