KERN ANDO, P.—Dharmadasa v. The Queen
fin THE CoUBT OF APPEAL OF SHI LANKA]
1972 Present: Fernando, P., Samerawlekrame, J., andSiva Supramaniam, J.T.G. DHARMADASA, Appellant, and THE QUEEN, RespondentAppeal No. 9 of 1972—C. G. A. Nos. 146 and 147 of 19718. C. 243 of 1971—M. C. Polonnaruwa, 9037
Charge of murder against two accused—Summing-up—Failure of judge to direct juryas to the case against each accused separately when it was necessary to do so—Misdirection—Verdict of Jury—Power of Court of Appeal to alter it—Courtof Appeal Act, No. 44 of 1971, s. 8 (2).
. The appellant and another accused were convicted on a charge of murder.Although the case was one where the trial judge was required to advise the juryto consider the case against each accused separately, he omitted to give Buchdirection. On the other hand he addressed the jury thus :—
“ On the facts of this case, I cannot see how you can distinguish betweenthe two accused in this case. You either convict both accused or acquitboth ; if you believe the prosecution story, then you will convict the acoused."
Held, that there was a misdirection on a very material point resulting ingrave prejudice to the appellant. However, os a reasonable jury, if theyhad been adequately directed in regard to the whole case, could have foundthat the appellant had taken part in a joint attack of the deceased personwithout sharing an intention to kill him but in circumstances in which he musthave known that death was a likely result, it was open to the Court of Appeal,acting under the powers vested in it by section 8 (2) of the Court of AppealAct, to substitute for the verdict of murder against the appellant a verdictof guilty of oulpable homicide not amounting to murder.
A.PPEAL from a judgment of the Court of Criminal Appeal.
R. 8. R. Coomaraswamy, with T. Joganathan, 8. C. B. Walgampayaand E. R. S. R. Goomaraswamy (Jnr.), for appellant. V.
V. S. A. Pullenayegum, Deputy Solicitor-General, with C. Sandara-sagara, State Counsel, for respondent.
Jnly 24, 1972. Febnando, P.—
The appellant, Dharmadasa, as the second accused and another man,Ranasinghe, as the first accused were convicted at the Midland Assizes,upon the unanimous verdict of a jury on a charge of murder of a mannamed Mutu Banda. The record kept at the trial shows that the jurytook only ten minutes to consider the verdict they returned. The trialjudge pronounced sentence of death upon both men. They appealed tothe Court of Criminal Appeal and that Court, after an argument lastingthree days and a quarter of which about a day had been taken for thereply of counsel for the prosecution, dismissed their appeals without41 – Volume LXXV
FERNANDO, P.—Dharmadasa v. The Queen
reasons given. We have, therefore, had to consider the appellant’s appealmade to us without having the advantage of the reasons which inducedthe Court of Criminal appeal to dismiss his appeal.
The evidence for the prosecution, which was by no means lengthy,consisted principally of one eye-witness, a woman named Punchi Hamine,the mother-in-law of Mutu Banda. She claimed to have seen the attackon her son-in-law which resulted in the latter’s death. According to her,Mutu Banda was riding a bicycle along a path that led towards his housewhen the appellant and Ranasinghe, who were both known to her,jumped from the abutting shrub jungle on to the path and toppled thebicycle bringing down Mutu Banda as well. She was then about twentyyards behind her son-in-law. From where she was she saw both theappellant and Ranasinghe moving their hands (she demonstrated themovements to the jury) and she inferred they were “ assaulting MutuBanda or doing something. Each of them did once like that and ranoff”. Mutu Banda raised himself up from the ground, ran towards hishouse, but fell before he could go far. When she reached the spotwhere Mutu Banda had been set upon she saw blood at the spot, andthere was a trail of blood from there right up to the place where theman lay fallen.
Punchi Hamine had been cross-examined to suggest that she had notBeen any movement of the hands of the appellant to enable her to inferthat he was himself stabbing Mutu Banda, and part of her depositionbefore the Magistrate’s Court (Dl) was proved to establish that at theinquiry she had attributed movement of the hands (“ as if he wasstabbing ”) only to Ranasinghe. For the appellant, it was claimed atthe trial, at the Court of Criminal Appeal and before us that the variationof her evidence at the trial on this important aspect of the attack shouldhave cast doubts on the credibility of her evidence in regard to the partattributed by her to the appellant. Complaint was made before us thatthe learned trial judge, when he came'to instruct the jury on the effectof Dl, only said, “ the statement made outside this Court is put herefor saying that the witness said a different thing at a different time.It is not every contradiction that goes to prove that she is speaking anuntruth. The task of assessing a contradiction is important, it iBfor you. Is this a material contradiction for you to say ‘ we do notbelieve Punchi Hamine ’ ? ”
Punchi Hamine had not at any stage said she had actually herself-seen a knife in the hand of either accused. The contradiction Dl wasproved by the defence not to discredit the entirety of Punchi Hamine’sevidence. Indeed, it may even have had the effect of strengthening herevidence in respect of the part she alleged that Ranasinghe had played ;but it obviously tended to cast a doubt in respect of the part she allegedthe appellant did play. After Dl was proved, a reasonable jury, properlyand adequately directed on its effect, was likely to have entertained adoubt about the truth or, at least, the accuracy of her evidence that theappellant went through the motion of stubbing Mutu Banda. The direction
FERNANDO, P.—Dharmadaea v. The Queen
actually given was, in our opinion, not merely inadequate but couldhave had, and probably did have, the effect of clouding the real issuethat arose from the proof of D1 which was not whether Punchi Haminewas a false witness when she claimed to have seen the attack but whethershe was a sufficiently reliable witness in regard to the part she had seenthe appellant play.
The rest of the evidence only tended to differentiate between the partsplayed by Ranasinghe and the appellant.
Mutu Banda had two knife injuries on him, each taken by itself beingsufficient to result in death. When the appellant and Ranasinghe, somefive hours after this incident, made their appearance in the late afternoonat the Police Station which was about 15 miles from the scene of thecrime, each of them handed over a knife to the Police. The evidenceestablished that the injuries could have been caused with either of thesetwo knives. Ranasinghe’s knife, when examined by the Analyst, wasfound to have some light stains of blood, while the appellant’s knifewas free of either blood or stains.
There was evidence of bad feelings only between Ranasinghe andMutu Banda. The two persons accused were not relatives although botheked out a living as carters. They had been seen together about four hoursbefore the attack having tea in the village boutique.
Two persons, the witnesses Pasqual and Mabel Hamine, who camerunning up from their houses on hearing’cries, questioned Mutu Bandaas to what had happened. To Pasqual the injured man replied thatRane stabbed him, while to the other who was no other than his ownwife he stated that Ranasinghe stabbed him.
Counsel argued that there was substantial difference between thestrengths of the prosecution’s cases as against Ranasinghe and theappellant. Shortly put, that (a) motive was established to have beenpresent only in Ranasinghe, (b) Mutu Banda, in reply to questions byrelatives soon after the injuries had been caused implicated only Rana-singhe, (c) no blood was present on the knife the appellant gave over atthe Police station, while blood stains were discovered on Ranasinghe’sknife given over at the same time, and (d) the only witness who hadimplicated the appellant as partaking in the attack had not, at theinquiry, stated that the latter had done anything after the bioycle hadbeen toppled.
There was substance, in our opinion, in counsel’s contention thathere was a case where the trial judge was required to advise the jury toconsider the case of each accused separately. This the trial judge omittedaltogether to attempt. Counsel did hot seek to suggest that the jurycould not on the evidence have found that the appellant had taken partin a joint attack on Mutu Banda, but he was in our opinion justified in
FERNANDO, P.—Dharmadasa v. The Queen
submitting that it was not a necessary inference from the evidence ofthe prosecution that the appellant shared with Ranasinghe an intentionto kill the deceased.
We have already referred to the effect that the contradiction betweenthe deposition (Dl) and the evidence of Punchi Hamine at the trialshould have produced on any reasonable jury. In the state of the evidence,the substance of which we have indicated above, we thought there wasa point in the oriticiBm of counsel that the learned trial judge misdirectedthe jury when he addressed them thus:—
“ On the facts of this case, I cannot see how you can distinguishbetween the two accused in this case. You either convict both accusedor acquit both; if you believe the prosecution story, then you willconvict the accused.”
It was difficult for us to resist the conclusion that a direction such asthis, following upon an omission to instruct the jury to consider separatelythe strengths of the respective cases against the accused, constituted amisdirection on a very material point resulting in grave prejudice to theappellant. The prejudice to him was that he received a sentence of deathwhen he might have received one of imprisonment only. Assuming,as we have a right at this Btage to do, that the prosecution story wasbelieved, nevertheless an important question remained as to whether theappellant shared an intention in common with Ranasinghe to kill MutuBanda. We think that an explanation for the circumstance that the jurytook the unusually short time of ten minutes to deliberate upon theirverdict in a murder case involving two persons is the probability that thelearned judge’s direction reproduced above made it appear to themthat their task was quite simple. No reasonable jury was likely tohave been willing to acquit Ranasinghe on the charge of murder. Sucha jury could have inferred that an acquittal of the appellant on thecharge of murder would have involved a similar acquittal of Ranasingheas well, and that course they were understandably unwilling to takein this case. Indeed, the direction appeared to us to have been anover-simplification of the correct issue before the jury which we mightformulate as follows:—
“ If the jury was satisfied that Ranasinghe stabbed the deceasedin circumstances which made it an offence of murder on his part,were they satisfied beyond a reasonable doubt on the proved cvidenoethat the appellant shared with Ranasinghe the murderous intention?”
The learned Deputy Solicitor-General suggested that the words ofthe trial judge we have reproduced earlier constitute no more than thelatter’s view on questions of fact in this case. The first sentence in thatdirection could possibly be argued successfully to be merely the trialjudge’s view on facts. Even bo, we must respectfully point out, it wasan erroneous view. Be that as it may, tile rest of the direction couldnot have been understood by average jurymen as anything that wasopen to them in law to disregard.
Balaaunderam v. Raman
Had there been an adequate direction in regard to the effect of thecontradiction between Punchi Hamine’s evidence at the inquiry andher evidence at the trial, and had the jury been instructed, as indeed onthe facts of this case they should have been, to consider the cases againsteach accused separately, a reasonable jury could not, in our opinionhave returned a verdict of guilty of murder against the appellant. Wethink, however, that the jury must have been satisfied that he partici-pated with Ranasinghe in an attack upon the deceased in circumstancesin which he must be held to have known that death was a likely result,and they could in that event have returned a verdict of guilty of thelesser offence of culpable homicide. We have, therefore, acting underthe powers vested in us by Section 8 (2) of the Court of Appeal Act,substituted for the verdict of murder against the appellant a verdict ofguilty of culpable homicide not amounting to-murder and for the sentenceof death a sentence of seven years’ rigorous imprisonment.
T. G. DHARMADASA, Appellant, and THE QUEEN, Respondent