King V. Piloris Fernando Et Al

[COURT OF CRIMINAL APPEAL]

1946 Present: Wijeyewardene, J. (President), Cannon and de Silva JJ.

THE KING v. PILORIS FERNANDO et al.

15- 17 M .C. Chilaw, 25, 917.

Evidence- Character of accused - Evidence of previous conviction of accused volunteered by prosecution witness in the course of cross-examination-Undefended accused - Duty of Judge- Evidence Ordinance, s. 54-Criminal Procedure Code, s. 230

Where, in a criminal trail before a Judge and Jury, a prosecution witness, while being cross-examined by an undefended accused, volunteered the evidence that the accused had been previously convicted for perjury-

Held, that the evidence was inadmissible under section 54 of the Evidence Ordinance and I was the duty of the trial Judge to have informed the accused, as he was undefended, that he had the right to apply for a fresh trial.

Held, further although the Jury had been directed not to act on such evidence there was a manifest irregularity and the trial Judge should have discharged the Jury under section 230 of the criminal Procedure Code.

APPEAL, with leave obtained , from a conviction by a Judge and Jury.

M. M. Kumarakulasingham, for the 1st accused, appellant, -The first accused was not represented by Counsel at the trial. In the cross-examination by the 1st accused of the Crown witness Peter the fact that the last accused was convicted for perjury was brought out. The question put by the 1st accused was fair and related to relevant matter, i. e, impartiality of witness, but the answer given by the witness was unfair and introduced irrelevant matter, namely, bad character of the 1st accused. The presiding Judge did not inform 1st accused of his right to submit that the trial should proceed and the proceed and decided that the trial against all the accused should proceed. He warned the Jury then and later in the summing-up to disregard that evidence.

[WIJEYEWARDENE J.-An irregularity of this sort only gives the accused the right to make an application that the trial shall not proceed, but the Judge has a discretion either to allow or refuse the application. Has not the Judge used his discretion in this case? See Rex v. Featherstone 1.]

As the accused was not informed of his right there is a manifest irregularity. A direction to jury no to act on the particular evidence is not adequate in the circumstances of this case-Rex v. Norton 2.

Further the Judge has decided that the case against all the three accused should proceed. The indications are that the Judge has not considered in particular the case of the 1st accused.

Foot notes

    1 28 Cr. App. R.176.                                                                                         2 (1910) 2 K. B. 500.

In Rex v. Firth conviction was quashed in the case of an accused who was represented by Counsel because a fresh trial was refused on application made by Counsel for the accused when evidence of bad character was brought out against the accused by his own Counsel. Rex v. Firth has not been overruled by Rex v. Featherstone. In Rex v. Featherstone the appeal was dismissed because there was a virtual admission of guilt by the accused.

The evidence against the accused is slender. If the accused gave evidence a verdict of acquittal was possible but accused did not give evidence as his previous conviction for perjury was known to the jury. Thus the accused was substantially prejudiced in his defence and therefore the proviso to section 5 (1) of the Court of Criminal Appeal Ordinance should not be applied in this case.

Further there is a difference between our Court of Criminal Appeal Ordinance and the English Act.

Our Ordinance makes provision for a retrial ; the English Act does not. Therefore it is possible for this Court to interfere where the English Court of Criminal Appeal would not interfere.

This is a case where the proviso to section 5 (2) of the Court of Criminal

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