THE QUEEN v. JALATHGE

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THE QUEEN v. JALATHGE
NLR62V385

The Queen V. Jalathge

[IN THE COURT OF CRIMINAL APPEAL]

1960 Present: Basnayake, C.J. (President), Gunasekara, J., and
Sansoni, J.

THE QUEEN v. H. JALATHGE

APPEAL No. 79 OF 1960, WITH APPLICATION No. 93

S. C. 20 -M. C. Tissamaharama, 32462

Evidence---Gross-examination of witness as to previous statements made by him in writing or reduced into writing-Permissibility-evidence Ordinance, s. 145 (1).

There had been a previous trial which had proved abortive as the jury were divided 4 to 3. At the second trial Counsel for the accused sought to utilise the evidence given at the previous trial for the purpose of contradicting some of the prosecution witnesses.
Held, that under section 145 (1) of the Evidence Ordinance the defence Counsel was entitled to utilise the previous proceedings for the purpose of cross-examining the prosecution witnesses.

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

Colvin R. de Silva, with M. L. de Silva, for Accused-Appellant.

J. G. T. Weeraratne, Crown Counsel, for Attorney-General.

June 9, 1960. BASNAYAKE, C.J.

In this case the accused was indicted with an offence punishable under section 300 of the Penal Code, for shooting Police Constable No. 889 Carolis. It would appear from the proceedings that there had been a previous trial which had proved abortive. The present trial commenced on 31st March, 1960 and ended on 12th April, 1960. The transcript of the proceedings shows that in the course of the case for the prosecution learned counsel for the accused sought to utilise the evidence given at the previous trial for the purpose of contradicting some of the prosecution witnesses but that he refrained from doing so on an indication from the learned presiding Judge that the trial should proceed 'Without any reference to the previous trial.

This is how the relevant portion of the transcript of the shorthand record reads :

" Grown Counsel :

Before I commence my cross-examination I would like to draw Your Lordship's attention to the evidence of this accused at the previous trial.

Court:

We will go on with this case without any reference to the previous trial. "

Some time later in the course of the cross-examination of the accused, learned Crown Counsel put the following questions ;

"Q. Can you recall the evidence you gave at the previous trial

A. Yes, I remember.

Q. Did you on that occasion tell this Court that the Inspector of Police, 1issa .

Thereafter the transcript reads as follows;

" Defence counsel to Court	:	My Lord, I object to my learned friend referring to any evidence given at the previous trial.
Court	:	But a witness can well be asked about a former statement he made which is inconsistent with his evidence here '?
Defence Counsel	:	I Object because when I tried to question a witness for the prosecution yesterday about his evidence at the previous trial Your Lordship did not allow me to do so.
Court	:	As far as J remember I merely expressed the view that evidence given at the previous trial should be avoided as much as possible but I did not make an order.
Defence Counsel	:	On Your Lordship telling me not to refer to the evidence at the last trial, I did not refer at all to it. So that now if Your Lordship allows my learned friend who appears for the prosecution to do so I submit that it will be unfair for the defence and to the accused because I have not had the privilege or advantage of cross-examining the witnesses for the prosecution on the previous trial.
Crown Counsel	:	Except this, that I have provision to utilise that section with Your Lordship's permission where this accused makes a completely different statement at this trial.
Court to Crown Counsel	:	I think you had better refrain from doing so because I have got a feelin

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THE QUEEN v. JALATHGENLR62V385

THE QUEEN v. JALATHGE
NLR62V385