[ASSIZE COURT]

1953 Present: Gratiaen J.

THE QUEEN v. M. SATHASIVAM

S. C. 1 Western Circuit -M. C. Colombo South, 38,682
 

Evidence Ordinance-Sections 8 (1), (2), 11 and 32 (1)-Statements made by a deceased person-Admissibility-Motive-Conduct-Evidence of trifling weight but gravely prejudicial to accused-Propriety of excluding it.

Accused was charged with murdering his wife. The prosecution sought to produce as part of its case a letter which the deceased had, in anticipation of the accused's return to Ceylon from abroad, written to a third party. The letter, however, amounted at best to mere general expressions indicating fear or suspicion of the accused and not directly related to the occasion of the death of the deceased.

Held, (i) that the letter was not admissible under section 32 (1) of the Evidence Ordinance.

(ii) that the letter was not admissible to prove motive for the crime, under section 8 (1) of the Evidence Ordinance, or to prove conduct on the part of the deceased, under section 8 (2) read with section 11, unless, in the former case, there was independent evidence that the allegations in the letter had induced resentment in the accused's mind against the deceased, and, in the latter case, there was independent evidence to support the suggestion that the deceased was apprehensive of danger to her safety after the accused had returned to Ceylon.

Held further, that evidence of trifling weight affecting an accused person, even though technically admissible, ought to be excluded if the potential prejudice which its reception is almost certain to produce will be out of proportion to its true evidential value.

RULING on  the admissibility of certain evidence tendered by the Crown in a trial before the Supreme Court.

T. S. Fernando, Solicitor-General, with Douglas Jansze, Ananda Pereira and Vincent Thamotheram, Crown Counsel, for the Crown.

Colvin R. de Silva, with T. W. Rajaratnam and Ananda de Silva, for the accused.

Cur. adv. vult.

March 24, 1953. GRATIAEN J.-

In this case the prisoner is charged with having murdered his wife on the morning of 9th October, 1951, at her residence in Colombo. The prisoner had been away in England, while the deceased and their children remained behind in Ceylon, for some months prior to September, 1951. He sailed from London in ss. " Himalaya " which vessel was expected

to arrive, and did in fact arrive, in Colombo on or about 21st September, 1951. Earlier in that month, the deceased had instituted proceedings against him in the District Court of Colombo, for divorce on the ground of malicious desertion.

The direct evidence tendered against the prisoner on the charge of murder will be that of a servant boy named William who claims to have witnessed and in fact assisted in the commission of the crime. Other evidence of a circumstantial nature will be tendered by the Crown to corroborate William whose testimony is necessarily that of a self-confessed accomplice.

The Crown proposes to prove as part of its case that on 17th September, 1951, the deceased, in anticipation of the prisoner's return to Ceylon, wrote the letter (marked P24 in the Court below) to a Police Officer in the following terms:
 

 Jayamangalam
7 St. Alban's Place,
 Bambalapitiya.
17th September, 1951.
 

C. C. Dissanayake, Esqr.,
Supdt. of Police, Colombo.

Dear Sir,

I am writing to you, as requested over the telephone, to inform you that I have filed an action in the Colombo District Court asking for a divorce from my husband Mr. M. Sathasivam on the ground of desertion. He has been away in England and the summons though issued has not yet been served. He will be arriving in Colombo per ss. Himalaya on the 21st instant, and I understand from his attorney that he intends to come to this house (which is mine) with his mother and reside here. In view of the pending divorce action this cannot be allowed, and I have been advised to re