LAW OF CRIMINAL PROCEDURE View by Jury of Scene of Crime
By Chandra Tilake Edirisuriya-2018-01-26
Prof. G.L. Peiris in his landmark thesis 'Criminal Procedure in Sri Lanka' says that the different implications of the above provision may be commented on in turn:
What purpose is served by a 'view' of the scene?
In Samaranayake v Wijesinghe (1951) 52 NLR 516, Basnayake CJ said: "The sole object of the visit appears to be to enable the jury to understand better the evidence." It was added: "The purpose of the view is not to find out the truth or falsity of the oral evidence, although incidentally the view may have the effect of exposing the false witness. Nor is it intended to be a means of obtaining evidence."
It is clear from the Section that a view of the scene of the crime can take place only whenever the Judge thinks that it is desirable and makes an order to that effect. In Vincent Fernando (1963) 65 NLR 265, Basnayake CJ observed: "The order that the Sub-section requires the Judge to make is not a mere minute or record, but a formal order stating the reasons or reason why the Judge thinks that the jury should view the place."
This opinion was reiterated by the Chief Justice in Julis (1963) 65 NLR 505. In this case, Basnayake CJ said: "As the enactment expressly provides that the persons under whose care the jury are to be conducted to the scene shall be a officer of Court, and does not enact a similar requirement in regard to the person whom the Judge should appoint to show the jury the place, any person acquainted with the place may be so appointed."
Orders by the Judge
The orders by the Judge requiring the jury to view the scene, appointing an officer of the Court under whose care the jury are to be conducted to the scene, and appointing a person to show the jury the place, have all been described as "imperative requirements of the statute which the Judge is bound to observe and are conditions precedent to a view by the jury," says Prof. Peiris.
At what stage of the trial is a view of the scene by the jury appropriate?
In Julis' case the visit to the scene took place after the prosecution and the defence had closed their respective cases. Basnayake CJ, speaking for the Court of Criminal Appeal, commented: "By itself, there seems to be no objection to a view at the end of the case. The Section imposes no restriction on the stage of the trial at which the view may take place. No hard and fast rule can be observed, but a view should not be ordered at a stage when it would not be in the interests of justice to do so. When evidence is recorded after the defence is closed, the accused are at a disadvantage when the further evidence taken touches aspects of the case which they were not called upon to meet at the time when they entered on their defence." This embodies a salutary caution which is vital for the purpose of the protection of the interests of the accused, says Prof. Peiris.
In Samaranayake v Wijesinghe (1951) 52 NLR 516, Basnayake CJ said: "In certain cases a view at the outset would help, in others a view after the important features of the case are known to the jury may be profitable, in still others the end of the case may be the most desirable stage for a view." It must be recognized, however, that the last situation is exceptional says Prof. Peiris.
In Gandhi (1961) 60 CLW 111, the Court of Criminal Appeal insisted that the jury should not be permitted to view the scene of the offence after the summing up by the Judge is concluded.
The Judge's presence at the scene is not compulsory.
In Arthur Perera (1956) 57 NLR 313, Basnayake ACJ, on behalf of the Court of Criminal Appeal, pointed out that: "The Section does not require that the Judge, Counsel and accused should accompany the jury."
In Aladin (1959) 61 NLR 7, Basnayake CJ said: "It is unnecessary to add that a Judge who does not take part in an inspection is at a disadvantage when it comes to charging the jury. They have a mind's picture of the scene, which he has not, and he is confined to the bare sketch which does not convey such a vivid picture as a view. He is thereby precluded from making the contribution he might have been able to make to the case had he taken part in the view."
Understand a sketch
In Aladin's case, the view was designed to help the jury to understand a sketch which puzzled them and which proved, on their visit to the scene, to be wrong in several material particulars. In a case of this nature, the Judge's presence at the scene of the crime is obviously desirable, says Prof. Peiris.
In any event, if it is proposed, during a scene by the jury, to conduct a demonstration concerning incidents relating to the commission of the alleged offence, the absence of the Trial Judge renders the proceedings illegal. This was emphatically asserted by Walagampaya J, on behalf of the Court of Criminal Appeal, in Fernando (1972) 76 NLR 160.
In this case, the Court of Criminal Appeal adopted unreservedly the following observations of Lord Denning in Tameshwar v R (1957) 2 All ER 683: "By giving a demonstration a witness gives evidence just as much as when in the witness-box he describes the place in words or refers to it on a plan. Such demonstration on the spot is more effective than words can ever be, because it is more readily understood. It is more vivid, as the witness points to the very place where he stood. It is more dramatic, as he re-enacts the scene. Now, if a view of this kind is part of the evidence, as their Lordships are clear that it is, it would seem to follow that it must be held in the presence of the Judge.
The summing up of the evidence by an impartial Judge with a trained mind is an essential part of every criminal trial, but it can only properly be done by a Judge who has heard all the evidence and seen all the demonstrations by witnesses. The Judge, for instance, may notice something at a demonstration which may be of vital importance, but passes unnoticed by everyone else until he draws attention to it. His presence ensures not only that the proceedings are properly conducted, but also that no relevant point on either side is overlooked."
In Fernando's case, the verdict and sentence were quashed, and the accused acquitted, on the ground of the absence of the Judge at the demonstration. The basis of the decision was that, having regard to the full re-enactment at the inspection of the alleged events, it was probable that the ultimate verdict of the jury was influenced by the impressions formed during the demonstration which, accordingly, ought to have been attended by the Judge.
No recording of evidence is permissible at the scene of the crime or other place viewed by the jury.
In Vincent Fernando (1963) 65 NLR 269, Basnayake CJ stated: "The Section does not provide for the Court visiting any place and, therefore, any proceedings that should be taken in Court, should not be taken at the place which is being viewed by the jury." The underlying principle is that "The view by the jury is not a judicial proceeding."
In Julis' case Weerasooriya SPJ observed: "The only irregularity of which any notice be taken is that the questions put to the witnesses and the replies they gave, took the form of evidence recorded at the inspection, instead of the witnesses being recalled in Court after the inspection was concluded and their evidence recorded as to what took place at the inspection, which is the procedure normally adopted."
Inspection in loco
In Arthur Perera's case Basnayake ACJ stated: "Though it is not necessary in every case that the observations made at an inspection in loco should be put before the Court in the form of a statement from a witness who is called, or recalled, after the inspection has been made, it is usual when the hearing is resumed, after an inspection, to call witnesses to give evidence in open Court under oath as to the matters indicated by them at the inspection."
The recording of evidence at the scene of the crime cannot be regarded as proper, merely because the Judge happened to be present. Basnayake CJ has stated: "When the Judge decided to attend the view by jury, though under no legal obligation to do, he had no power to exercise his functions and duties as presiding Judge at the place. His presence at the scene can only be warranted on the ground that he is there for the purpose of seeing for himself what the jury were to be shown."
Is it a 'simple view' of the scene by the jury that is permitted, or can demonstrations or experiments, be conducted with propriety at the scene?
In Aladin's case, the Court of Criminal Appeal stated: "We wish to guard ourselves against being understoodto mean that, at a view of the scene, witnesses cannot be asked to demonstrate or explain something which needs explanation or to take up certain positions which they say they occupied at the time the crime was committed. Witnesses can be asked to give demonstrations or explanations, but such demonstration and explanation must be given in the presence of the Judge and jury."
In Seneviratne (1936) 38 NLR 208, Lord Roche, speaking for the Judicial Committee of the Privy Council, emphasized that "Their Lordships have no desire to limit the proper exercise of discretion or to say that no view by a jury can include an inspection or demonstration of relevant sounds or smells."
In Rathinam (1968) 71 NLR 275, T.S. Fernando J, on behalf of the Court of Criminal Appeal reached the conclusion "That all demonstrations are not ruled out, is apparent from decisions on corresponding provisions of law."
The opinion had been expressed in some decided cases that no experiments or demonstrations should be permitted at the scene under any circumstances. Thus in Samaranayake v Wijesinghe, Basnayake J remarked that "The carrying out of experiments seems to fall outside the scope of a view by the jury." In Julis' case, Basnayake CJ in a similar vein, commented: "There is no Section of the law which provides for the carrying out of experiments or the making of tests at the place viewed by the jury."
It is apparent, however, that the approach reflected in these decisions is too absolute. The attitude now established for the law of Sri Lanka, is that demonstrations and experiments are permissible in appropriate circumstances, but subject to certain limitations and safeguards required by the law.
