Daniel Appuhamy V. The Queen

[IN THE PRIVY COUNCIL]

1962 Present: The Lord Chancellor, Lord Morton of Henryton,
Lord Evershed, Lord Guest, and Lord Pearee

G. R. DANIEL APPUHAMY, Appellant, and THE QUEEN,
Respondent

Privy Council Appeal No. 12 of 1961

S. C. 19-M. C. Kegalle, 22,585

Criminal Procedure Code-Section 440 (1)-Summary punishment of a witness for perjury in open court-Procedure that should be followed in a trial before Supreme Court--Duty of Court to inform witness of the gist of the accusation against him.

Under section 440 (1) of the Criminal Procedure Code it is for the Court, and not for the jury, to decide whether false evidence has been given by a witness, and if in the Court's opinion .the witness has given false evidence, then the Supreme Court has power to sentence summarily " as for & contempt of the Court".

A rider brought by the jury to the effect that the witness should be dealt with for giving false evidence is not equivalent to a verdict of guilty to a charge of perjury.

It is not necessary when proceeding under section 440 (1) for the accusation of giving false evidence to be stated with the particularity required in a count of an indictment. If the Court is of the opinion that the whole of a witness's evidence was false, it may be sufficient just to say that. But when it is not suggested that the whole of a witness's evidence is false, it is essential that the witness be left in no doubt as to which parts are alleged to be false. The Court should, before sentencing a witness, give the witness an opportunity of explanation and possibly of correcting a misapprehension as to what had been in fact said or meant.

APPEAL, by special leave, against an order of a Commissioner of Assize summarily sentencing a witness to three months' rigorous imprisonment for having given false evidence.

E. F. N. Oratiaen, Q. C. with Dick Taverne, for the witness-appellant.

John A. Baker, with Annesley Perera, for the Crown.

Cur. adv. vult.

December 13, 1962. [Delivered by THE LORD CHANCELLOR]-

The appellant Gamalath Ralalage Daniel Appuhamy was a witness for the prosecution at the trial of eight persons at the Randy Assizes of the Supreme Court of Ceylon in April 1960. At the end of the trial the Commissioner of Assize summarily sentenced the appellant to three months' rigorous imprisonment for having given false evidence.

Power to pass such a sentence is given by s. 440 (1) of the Criminal Procedure Code of Ceylon which provides that:-

" If any person giving evidence on any subject in open court in any judicial proceeding under this Code gives, in the opinion of the court before which the judicial proceeding is held, false evidence within the meaning of section 188 of the Penal Code it shall be lawful for the court, if such court be the Supreme Court, summarily to sentence such witness as for a contempt of the court to imprisonment either simple or rigorous for any period not exceeding three months...... "

The relevant part of s. 188 of the Penal Code reads as follows :-

" Whoever, being legally bound by an oath or affirmation, or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false, or does not believe to be true, is said to give ' false evidence '."

The Charges against the eight accused were in respect of the looting of a boutique run by a Tamil, Mooka Pillai, on the 29th May 1958 during the racial riots that occurred at that time. Mooka Pillai gave evidence that the appellant, the village headman of a neighbouring village, came to his boutique in the evening of the 29th May 1958 and told him that people were planning to loot it that night. A lorry was sent for and loaded with goods from the boutique with the intention of taking them to an empty boutique close to the appellant's house. While the lorry was being

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