LAW OF CRIMINAL PROCEDURE
By Chandra Tilake Edirisuriya-2018-01-19
The statements in question were recorded by the Police Officer after the Magistrate had commenced his preliminary inquiry at the scene of the offence and after he had made the order remanding the accused to Fiscal's custody. Basnayake ACJ expressing the view of the majority of the Court of Criminal Appeal said: "In the instant case Crown Counsel was seeking to introduce new evidence to meet the evidence given by the accused, and what he sought to do was in fact to exercise the right he had under Section 155 of the Evidence Ordinance to impeach the credit of the accused by proof of former statements inconsistent with the evidence." This is in line with the view taken in Rasiah v Suppiah (1949) 50 NLR 265, that the need for evidence in rebuttal, strictly so called, does not arise in these circumstances, says Prof. G.L. Peiris in his comprehensive thesis 'Criminal Procedure in Sri Lanka.'
In Wijeratne v Ekanayake (1947) 48 NLR 306, Dias J stated that evidence by way of rebuttal can be led by the prosecution in the interests of justice, in three types of situations: (1) where the prosecution is taken by surprise by the evidence called for the defence, for example, an alibi which can be disproved; (2) where, under Section 15 of the Evidence Ordinance, proof is available to rebut a defence raised by the accused for the first time when the accused gives evidence; and (3) where a previous statement incompatible with the testimony of the accused in Court is available to show that the evidence of the accused is untrue.
A necessary limiting
principle
Where evidence in rebuttal is given for the third of the purposes referred to by Dias J in Wijeratne v Ekanayake, a necessary limiting principle is that a statement can be received as evidence in rebuttal only if it counters directly a statement which had previously been made in Court as part of the evidence in the case. This limitation is illustrated in Jinasekera (1945) 46 NLR 243. The second accused gave evidence that it was he and not the first accused who had stabbed the deceased. The prosecution, with the leave of the Judge, called an Inspector of Police to 'rebut' the evidence of the
second accused by means of a contradictory statement made earlier to the Inspector of Police by the second accused. It was held that only the contradictory statement, and nothing else, should have been received as evidence in rebuttal. Howard CJ observed: "A further statement should not have been produced in evidence (at this stage) inasmuch as it was not called in rebuttal of anything the second accused had said in evidence."
It may be noted, incidentally, that an answer given by a witness (including the accused) in cross-examination remains un-contradicted if it is not intended to lead evidence in rebuttal. In Wijeratne v Ekanayake, Dias J, commenting on this aspect of the matter, said: "The rule of evidence is that the cross-examiner can ask the witness 'Did you on a previous occasion either to the investigating Police Officer or to some other person say so and so?' If the witness denies such a statement, the cross-examiner must elect whether he is going to discredit the witness by proving that previous statement, and in that event he will at once mark the inconsistent statement if it is in writing, and duly prove it at the proper time either by calling the person who recorded the statement to produce it, or if the statement was not recorded, by calling the person who heard the inconsistent statement made. If he fails to do so, all that happens is that the evidence of the witness stands un-contradicted and the Judge of facts will assess the credibility in the usual way. In the case of an accused witness, in particular, it is the duty of the Judge of facts to have addressed to his mind the warning that the alleged unproved statement should be disregarded in assessing the credit to be attached to the evidence of the witness. If that is done, the failure to prove such statement is of no consequence." On the other hand, if a caution on these lines is not addressed to the jury, the omission to prove in rebuttal the alleged contradictory statement may result in grave prejudice to the accused witness, says Prof. Peiris.
The calling of witnesses to rebut a defence raised ex improviso by an accused person at the trial is illustrated by several cases, he says.
The decision of Nihill J in Ahamadu Ismail (1940) 42 NLR 297, at an Assize Trial is of particular assistance. In this case, the prosecution asked for leave to call in rebuttal a witness, F, to 'counter' the suggestion made by the accused that he went to the boutique of one J for the purpose of selling gems to J at the instance of J's employee, F. The prosecution was aware that the accused had gone to a certain boutique and sold gems and that the accused had stated that he could identify a boy in that boutique who had witnessed the transaction. At the trial, the accused gave the boy's name as F. The case for the prosecution was that the accused had a large sum of money with which he hired assassins to commit the crime, but the accused sought to give an explanation for the possession of a large sum. Nihill J allowed F's evidence to be led in rebuttal. It was the Judge's view that the prosecution could not have led the evidence of F as part of the prosecution case and that it was only after the accused gave evidence that F's testimony became relevant. The accused, in giving evidence, had offered an account of his movements in the village (including the visit to J's shop at F's suggestion), and Nihill J thought it proper to allow F's evidence to be led in rebuttal to enable the prosecution to prove that this part of the accused's explanation of his conduct and movements after the crime was false.
For the purpose of destroying an alibi
In Sediris (1970) 47 NLR 224, the Court of Criminal Appeal allowed the prosecution to lead evidence in rebuttal for the purpose of destroying an alibi which the defence endeavoured to set up as part of its case. Alles J quoted with approval the observation by the English Court of Criminal Appeal in Flynn (1957) 42 Cr AR 15 that: "If in the case of an alibi, evidence comes into the possession of the prosecution at a late stage, it ought, as a general rule, to be admitted, unless the alibi has been set up earlier." The Court acted on the principle that, in the interests of justice, evidence in rebuttal should be permitted when the prosecution has been taken by surprise by evidence being led on behalf of the defence which the prosecution could not reasonably have anticipated.
In Sediris' case, the Court of Criminal Appeal stressed that the prosecution is not entitled to lead evidence in rebuttal as of right but the leave of the Court must first be obtained. The following considerations were declared to be relevant for the purpose of exercise of the Judge's discretion in regard to the reception of evidence in rebuttal: (i) whether the prosecution has been taken by surprise; (ii) whether the rebutting evidence could have been given in chief; (iii) whether it does or does not surprise the defence; and (iv) whether its admission places the defence at an unfair advantage.In other words, the following considerations militate cogently against the reception of evidence in rebuttal: (1) evidence the necessity for which should have been obvious from the outset, cannot be given in rebuttal. The prosecution cannot be asked to be permitted to remedy a manifest deficiency in the evidence called in support of the prosecution. The prosecution cannot endeavour to call, after the closure of the case for the defence, supplementary evidence if the material on which it was to be given had been in the hands of the prosecution from the beginning and if the evidence related to a branch of the case on which the prosecution must have realized that positive evidence ought to be given: and (2) as decided in Noor Mohamed (1949) AC quoted with approval by the Court of Criminal Appeal in Ruparatne (1955) 56 NLR 353 "in all these cases, the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the Judge would be right to exclude it. Cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused, even though there may be some tenuous ground for holding it to be technically admissible. The decision must then be left to the discretion and sense of fairness of the Judge."
In Don Wilbert (1962) 64 NLR 83, Sinnetamby J delivering the judgment of the Court of Criminal Appeal, adopted the statement that "The general theory of our law is that he who affirms must prove and, therefore, it is for the prosecutor to prove his case, and if there is some matter which the prosecution might have proved but have not, it is too late, after the case for the defence has been closed, to allow further evidence to be given." This is the general rule, insisted upon in the interest of protecting the accused; the situations in which the prosecution may be afforded a second opportunity, as it were, of adducing evidence after the end of the case for the defence, are to be viewed as exceptional, Prof. G.L. Peiris concludes.
