King V. Namasivayam Et Al.,

[Court OF Criminal APPEAL.]
 
1948 Present : Howard C.J. (President), Jayetileke J.
and Nagalingam J.
 
THE KING v. NAMASIVAYAM et al. Appeals Nos. 21-24 of 1948.
 
S.C. 21-24- M. C. Kurunagala, 19,878.

Court of Criminal Appeal-Depositions of witnesses in Magistrate's Court-Questions by trial Judge-Resulting affirmation that statement before Magistrate was true-Substantive evidence-Refreshing memory of witness-Misdirection - Prejudice to accused-Verdict based on illegal and inadmissible evidence- Evidence Ordinance, Section 159-Extension of time for appeal.
 
The accused were charged with being members of an unlawful assembly' tooting, criminal trespass and causing hurt. The defence did not contest the fact of perpetration of the offence but did contest that the prisoners on trial were responsible for it and the question of identification became, in consequence, of extreme importance. Some of the witnesses in the course of examination stated that they could not remember the presence of various accused, whereupon the trial judge proceeded to examine them in the following strain :
 
Q. You told the Magistrate that four people came and one of them was the first accused. What you said in the lower court, is that true ?
 
A. Yes.
 
Q. If you told in the lower court that the first accused was one of them is that true ?
 
A. Yes.
 
Held, (i) that such examination let in as substantive evidence the depositions made by the witnesses before the Magistrate and that such evidence was illegal and inadmissible ;
 
(ii) that although a Judge has very wide powers of asking any questions he pleases in any form and at any time of any witness, those powers should not be so used as to afford ground for the legitimate criticism that the accused persons have not had the benefit of a fair trial;
 
(iii) that in the absence of a direction by the Judge as to the position in regard to the statements said to have been made by the witnesses before the Magistrate but which were not proved to have been made by them nor even as to what the effect was even if so proved in the absence of affirmative evidence in court on the part of the witnesses re-iterating the statement alleged to have been made before the Magistrate, it could not be said that the verdict of the Jury may not have been based on illegal and inadmissible evidence.
 
Held, further, that it is open to the Court of Criminal Appeal to extend the time for appeal if application for leave to appeal is made.
 
Quaere, whether depositions made at least a month after the event and which were not read over by the witness but read to him could be regarded as falling within the ambit of Section 159 of the Evidence Ordinance which permits a witness to refresh his memory by reference to a document.

APPEALS from certain convictions in a trial before a Judge and Jury.
 
H. V. Perera, K. C., with S. C. E. Rodrigo and S. Sabapathipillai, for the 2nd accused-appellants.
 
S. Saravanamuttu, with V. Joseph, for the 7th and 16th accused-appellants.
 
S. C. E. Rodrigo, for the 18th. accused-appellant.
 
H. A. Wijemanne, Crown Counsel, for the Crown.

Cur. adv. vult.

April 22, 1948. NAGALINGAM J.-
 
The four appellants, who are the 2nd, 7th, 16th and 18th accused in this case, appeal with, leave of Court against their convictions of the offences of being members of an unlawful assembly, rioting, criminal trespass and causing hurt.
 
Two main grounds have been urged on appeal, firstly, that improper use to the prejudice of the appellants was made at the trial of the depositions made by the witnesses before the Magistrate at the non summary inquiry, and secondly, that in any event the verdict of the Jury cannot be supported having regard to the evidence in the case.
 
The first question raises a problem of. some importance in the administration of criminal law. For a full and true appreciation of the point raised, it is necessary as a prelimin

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