[Court of Criminal Appeal]
1930 Present : Nagaltngara J. (President) , Gratiaen J. and Pulle J.GUNAWAEDENE et at., Appellants, and THE KING, BespondentAppeals 39-40, 42-44 of 1950 with Applications 80-81, 83, 85-86S. C. 24—-M. C. Ratnapura, 16,250
Court of Criminal Appeal—Accomplice—jMisdirection, as to meaning of term—Conviction vitiated—Divided verdict—Applicability of proviso to section 5 (!>of Court of Criminal Appeal Ordinance, No. 23 of 1938.
A guilty associate in a conspiracy to cause the death of someone cannotdivest himself of the character of an accomplice merely because he refrainedthereafter from participating in the murder which had been planned.
Held further (by majority of Court), that the proviso to section 5 (1) of tboCourt of Criminal Appeal Ordinance cannot properly be applied in the caseof a divided verdict, unless the evidence against the accused is of such, acharacter as, to justify the reproach that the judgment of the dissenting jurorswas manifestly perverse.
PPEALS, with applications for leave to appeal, against certainconvictions in a trial before a Judge and Jury.
M. M. Kumarakulasingham, with C. M. Dharmakirti-Pi eris,for
the 1st and 2nd appellants.
M. M. Kumarakulasingham, with A. B. Perera and T. B.. Dissa-nayake, for the 3rd appellant.. .
M. M. Kumarakulasingham, with T. B. Dissana'yake, for the 4thappellant.,,
M. M. Kumarakulasingham, with Austin Jayasunya, for the 5thappellant.
H. A. TVijemanne, Crown Counsel, with A. G. M. Ameer, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
November 13, 1950. Gratiaen J.—
There were six accused in this case. They were charged (1) with theoffence of conspiracy to cause the death of two persons named DonChandradasa Samarasinghe Appuhamy and Pitigala ArachchillageSimon Singho, in pursuance of which conspiracy both persons were infact murdered ;(2) with the murder of the said Don Chandradasa
Samarasinghe Appuhamy ; (3) with the murder of the said Pitigala-Arachchillage Simon Singh^; (4) alternatively to the second count,with abetment of the murder of Don Chandradasa Samarasinghe Appu-hamy ; (5) alternatively to the third count, with abetment of the murder
■of Pitigala Arachehillage Simon Singlio. The alternative charges ofabetment were withdrawn in the course of the trial- On the outstanding■charges the 6th accused was unanimously acquitted by the jury of the .charge of conspiracy, and the other five accused (who are the appellants)were found guilty of conspiracy by a divided verdict of 5 to 2. Noverdict on either of the charges of murder has been recorded* but it is'not necessary for the purposes of the present appeals, which relate solelyto the convictions on the charge of conspiracy, to decide what con- ■sequences result from the omission on the part of the jury to complywith the imperative requirements of section 248 (1) of the CriminalProcedure Code.
One of the principal witnesses called for the prosecution was thewitness Maddumage Dias, and there is no doubt that his evidence, ifacted upon by a jury properly directed, points strongly to the guilt of-the appellants. Certain other witnesses were called to support Dias’version of the events which took place during the crucial period preceding’September 23,1949, on whieh date Don Chandradasa Samarasiifghe
Appuhamy and Pitigala Arachohil 1 age Simon Singho were killed- TheJury were not, however, invited by the learned Judge to consider whether,apart from the evidence of Dias, the guilt of the accused was establishedby the evidence of those other witnesses alone.
It is necessary to refer only to the main ground of appeal which wasurged before us. Admittedly, the circumstances in which Dias claimed•to be able to testify to certain incidents alleged to have taken place during"the erucial period September 19 to 23, 1949, were such as prominentlyto raise the question whether his evidence should be regarded as that•of an accomplice. The learned Judge very properly directed the jurythat they should give their careful consideration to the question whetherDias was in fact an accomplice, and the jury were cautioned as to themanner in whieh the evidence of an accomplice should be assessed.Counsel for the appellants contends, however, that the following passagesin the learned Judge’s charge were likely to have confused the juryon the matters to be taken into account by them in deciding whetherJDias should be regarded as an accomplice: —
1.“ You will have to ask yourselves, gentlemen of the jury, whether'
in the circumstances of this case Dias. is an accomplice or not.You would look at it this way; to. what extent did Dias identifyhimself with the conspiracy on that count ? How far did hego ? What was his participation ? Did he go so far as' tomake him a guilty associate ? He tells you that on that lastfateful day he turned back. If he was .the only person whosaid that you might have been very doubtful. But Gunasekeraalso says that he turned back. In those circumstances would“ you say that he was a guilty associate in either of the murders ?”;2.“ About the meeting of Gunasekara and Piyadasa on the 23rd
he (i.e. Dias) said that when he met them he took advantageof the fact of meeting Gunasekara to stay behind- Gunasekarasays he actually stayed behind. Ii that is so, you will askyourselves, ‘ did Dias’ part in the conspiracy stop at thatpoint ? If so, is he an accomplice ? ’ ”.
After very careful consideration we have come to tlie conclusion thatthis' complaint is justified. It seems to us that these passages (andparticularly the second of them•) might well have misled the jury into-thinking that they need not regard Dias as an accomplice if, in theirview, .he had been a guilty associate in the original plot to cause thedeath of Appuhamy and Simon Singho but was not a guilty associatein the actual commission of the murders. The correct position, ofcourse, is that the jury should have approached the evidence of Dias-with caution even if .they believed bin* to be an accomplice in respectof the offence of conspiracy alone. A, guilty associate in a conspiracyto cause the death of someone cannot divest himself of the characterof an accomplice merely because hfe refrained thereafter from partici-pating in the murders which had been planned.
In our opinion the passages which I have quoted from the learnedJudge’s charge amount to a misdirection which vitiates the convictionunless, in accordance with the proviso to section 5 (1) of the Court ofCriminal Appeal Ordinance, we can hold that no substantial miscarriageof justice has actually occurred. The majority of the Court have cometo the conclusion, that this is not a case to which the proviso should beapplied. As an appellate tribunal, we lack the advantage of having seenand heard the witnesses for ourselves, and we are not convinced thatthe evidence in the case was so “ convincing, cogent and irresistible ” (R. v.Lewis 1) that “ no reasonable jury would or could have eome to any otherconclusion ” than that all five accused are guilty. (R. v. Haddy 2 ; Stirlandv. Public Prosecutor 3 and R. v. Wijedasa- Perera et al. 4.) It is importantto remember that at the trial two of the jurors did not return a verdictagainst the appellants, and were presumably not prepared to act on.the evidence for the prosecution.. In our opinion .the. proviso to section5 (1) of the Court of Criminal Appeal Ordinance cannot properly beapplied in the ease of a divided verdict unless the evidence against theaccused is of such a character as to justify the reproach that the judgmentof the dissenting jurors was manifestly perverse.
We are all agreed that the evidence in the case, if accepted by a juryupon proper directions, was evidence upon which the accused mightreasonably have been, convicted. We accordingly order that the con-viction on the charge of criminal conspiracy be quashed and. that theappellants be re-tried on this count. We express no opinion as to whetherit is open to the Crown to claim that the appellants should also be triedafresh on the 2nd and 3rd counts on which no verdict was returnedby the jury at the conclusion of the original trial.
(1944) 2 A..E.R. 13.(1950) 51 N. L. It. 29.
1 (1937) 26 Cr. A..R. at p. 113.» (1944) 1 A.JS.R. 319.
GUNAWARDENE et al., Appellant, and THE KING, Respondent