[COURT OF CRIMINAL APPEAL]

1951 Present.- Dias S.P.J. (President), Gratiaen J. and de Silva J.

JARLIS, Appellant, and THE KING, Respondent

APPEAL NO. 17 OF 1951

 S. C. 40-M. C. Kalutara, 7,965

Court of Criminal Appeal-Rape-Father and daughter-Evidence of previous similar acts-Admissibility-Mens rea-Evidence Ordinance, ss. 9, 14, 15-Cor-. roboration-Proper direction to jury.

Where the accused was. charged with committing rape on his daughter, and evidence was led by the prosecution of previous similar acts of misconduct by the accused with the same daughter-

Held, that the evidence was admissible, not to prove that the accused was a man of bad character or to prove mens rea, but, under section 9 of the Evidence Ordinance, to show that the father had conceived a guilty passion for his daughter. Such evidence may also be relevant under sections 14 and 15 of the Evidence Ordinance, or to rebut a defence which would otherwise be open to. the accused.

Held further, that in a case of rape there is no duty upon the Judge to point out to the jury pieces of evidence which are capable in law of amounting to corroboration it would be sufficient if he has told the jury what in law is meant by corroboration.

APPEAL, with leave obtained, against a conviction in a trial before the Supreme Court.

E, B. Satturukulasinghe, for the accused appellant-

[DIAS S.P.J.-Was the offence laid against the accused one involving mens rea ?]

The offence of rape does not involve any mens rea. The prosecution attempted to prove the offence charged by proving that the appellant had been guilty of previous offences of the same kind. Evidence of such previous acts is not admissible under our law. See Empress v. Vyapoory Moodeliar 1[L. R. 6 Cal. 655 at 660. ] where it was held that section 14 of the Evidence Act should not be extended to cases where guilt or innocence depends upon actual facts and not upon the state of a man's mind. Counsel also cited Makin v. Attorney-General of N. S. W.2[ (1894) A. C. 57.]and Beg. v. Parbhudas Ambaram 3[11 Bombay H. C. R. p. 90.].

Evidence cannot be led of the other facts relied upon before evidence is given of the fact charged. The course followed by the Crown

prejudiced the appellant in that it tended to make the jury consider the evidence in regard to the act charged with their minds already affected by the evidence as to the earlier acts.

Counsel also cited R. v. Smith 1[11 Cr. A. R. 237.]. The jury were prejudiced by the admission of evidence of bad character of the accused, viz., that he was a gambler and addicted to drink.

The trial judge misdirected the Jury on the question of corroboration inasmuch as he told them that the evidence of Uparis who stated that he saw the girl being shut up in the room was corroboration of the evidence of the girl.

T. S. Fernando, Crown Counsel, with H. A. Wijemanne, Crown Counsel, and S. S. Wijesinha, Crown Counsel, for the Crown,-called upon by the Court to reply only on the question of the admissibility of the evidence.-

This evidence was led to establish that the appellant entertained a guilty passion towards his daughter, a fact relevant as showing the existence of his state of mind or body or bodily feeling. Evidence of this nature has been regularly admitted in English Courts, and it is precisely on the principle applied in such Courts that this evidence is admissible here. See the cases of R. v. Ball 2[(1910) 6 Cr. A. R. 31. ] followed in R. v. Shellaker 3[ (1913) 9 Cr. A. R. 240], R. v. Hewitt 4[(1925) 19 Cr. A. R. 64.] and in R. v. Hartley 5[(1940) 28 Cr. A. R. 15.]. In the last of these cases counsel did not seriously press the point that the evidence was inadmissible.

In Hewitt's Case 6[(1925) 19 Cr. A. R. 64.] it was held that evidence of this nature was admissible even though the acts ranged over a period of four years. In the present case too, having regard to the fact that the appellant was