Fernando, S.S. V. The Queen

[COURT OF CRIMINAL APPEAL]

1953 Present: Rose C.J. (President), Nagalingam S.P.J. and
K. D. de Silva J.

S. S. FERNANDO, Appellant, and THE QUEEN, Respondent

 APPEAL NO. 46, WITH APPLICATION NO. 82

S. C. 3-M. C. Panadure, 24,458
 

Evidence-Indictable offence-Statement made by a witness at non-summary inquiry- Evidentiary value of it at trial.

When a statement made by a witness at a non-summary inquiry is denied by him at the trial of the accused, it cannot be used as substantive evidence.

APPEAL, with application for leave to appeal, against a convictions in a trial before the Supreme Court.

A. C. Nadarajah, with H. L. de Silva, for the accused appellant.

Amanda Pereira, Crown Counsel, for the Attorney-General.

Cur. adv. vult

September 13, 1953. NAGALINGAM S.P.J.-

At the conclusion of the argument of this appeal we set aside the conviction and acquitted the accused and stated that we would give our reasons later. We now proceed to do so.

The prisoner was indicted on a charge of murder. The evidence relied upon by the prosecution was that of three witnesses each of whom was put forward as an eye-witness, but during the course of the trial it became apparent that not one of them was a credible witness and that the evidence of each one of them was so full of infirmities and improbabilities that no reliance could safely have been placed upon their testimony ; in the result the learned trial Judge took the view which was expressed by him thus after dealing specifically with the nature and character of the evidence given by each of them :

" Then you have no evidence of an eye-witness to say that it was the accused who committed this offence. "

The learned trial Judge would seem to have formed this opinion of these witnesses, if not earlier, at least at the stage when from the Crown point of view all the material evidence which the prosecution could with advantage place before the Court had been led ; for when all that remained to be done by the prosecution was to close its case, the learned Judge intervened and recalled Mitchel, one of the alleged eye-witnesses, and questioned him with regard to certain statements made by him at the Magisterial inquiry. In answer to Court that witness said :

" I remember that the accused put to me that I and the deceased went to his house to assault him .... It was put to me that the deceased had a crow bar in his hand when he went. I denied that. It was not suggested that the accused snatched the crow bar and struck the deceased on his head. I do not remember the suggestion being put in the form that the deceased had a crow bar and that the accused snatched it and struck the deceased on his head with it. "

With a view to contradict this evidence the Clerk of Assize was called to prove the following statement made by the witness at the Magisterial proceedings:

" I deny that the deceased had a crow bar in his hand, and that the accused snatched the crow bar and struck the deceased with it a blow on the head. "

In the course of his address to the Jury the learned trial Judge, after having indicated to the Jury that the evidence of the eye-witness was unacceptable, proceeded to charge them as follows :

" If on a consideration of the evidence of the witnesses you are not prepared to accept that evidence, you are left with other evidence to which I shall refer. "

And the " other evidence " the learned Judge referred to was no other than the statement made by the witness Mitchel in the Magistrate's Court, to which he adverted in the following words :

" When the Magistrate started the inquiry at the hospital, the accused who was undefended cross-examined Mitchel, and in the course of that cross-examination the accused suggested to Mitchel that he (Mitchel) and the deceased entered the accused's house, the deceased being armed with a crow bar, and when they were about to assault the accused, the accused snatched t

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