SOERTSZ S.P.J.—The King v. Abeywickrema.
[Court of Criminal Appeal.]
1943 Present: Soertsz S.P.J., de Kretser and Wijeyewardene JJ.
THE KING v. ABEYWICKREMA et al.
104—M. C. Galle, 35,576
Abetment of murder—Circumstantial evidence—Proof of instigation to murderessential—Application for leave to appeal—Valid grounds therefor.
Where, in a charge of abetment of murder circumstantial evidenceestablished a case of strong suspicion against the accused and the Juryconvicted him under the .impression that it was open to them to convictthe accused as he refrained from going into the witness box,—
Held, that the conviction could not be sustained.
In such a charge the Crown is bound to establish as part of its casethat the accused actually instigated the others to murder the deceased.
In – order to base a conviction on circumstantial evidence the Jurymust be satisfied that the evidence was consistent with the guilt of theaccused and inconsistent with any reasonable hypothesis of his innocence.
Applications for leave to appeal will not be granted unless the groundssuggested would, if established in the end, sustain the appeals themselves,that is to say, would show that the verdict of the Jury is unreasonable orcannot be supported having regard to the evidence or that there has been,a miscarriage of justice.
PPEAL from a conviction by a Judge and Jury before the 1st WesternCircuit, 1943.
N. M. de Silva, for first to sixth applicants.
H-. V. Perera, K.C. (R. L. Pereira, K.C., with him 17. A. Jayasundera,M. M. Kumarakulasingham, and C. Renganathan) for seventh applicantM. W. H. de Silva, A.~G., K.C. and T. S. Fernando, C.C., for theCrown.
Cur. adv. vult.
May 10, 1943. Soertsz S.P.J.—
In this case there are before us seven applications for leave to appealagainst the conviction entered against the seven applicants, when the
SOERTSZ SJPJ.—The King v. Abeywickrema.
' Jury returned a unanimous verdict finding the first to the sixth applicantsguilty of the offence of murder whilst being members of an unlawfulassembly; and the seventh applicant guilty of abetment of that offence.There is also an appeal by the seventh prisoner on grounds of law.
So far as the applications for leave to appeal against the convictionsare concerned, it is well established in the Courts of Criminal Appeal inEngland and here that applications for leave to appeal will not be grantedunless the grounds suggested would, if established in the end, sustain theappeals themselves, that is to say, would show that the verdict of theJury is unreasonable or cannot be supported having regard to theevidence, or that there has been a miscarriage of justice.
We have therefore examined with great care and anxiety—and in thatmatter we had much assistance from the Bar—all the evidence and mattersthat were before the Jury when they retired to consider thier verdict.
It seems to us that a very material question, perhaps, ultimately themost important question to consider and answer is this—did the deceased,escorted by some followers of his, invade the premises of the seventh'applicant, and did he meet his death there in the course of a transactionwhich resulted from his invasion or was he taken on to that land inorder that he might be put to death there and the defence set up that he 'was an aggressor and suffered the consequences to which his aggressionmade him liable.
The verdict of the Jury examined in the light of the direction theyreceived from the trial Judge puts it beyond doubt that they took thelatter view. There was ample oral testimony which, if it were accepted,justified that view. We were however, addressed in regard to the manyinfirmities of that evidence, such as* the divergent accounts given by thewitnesses concerning the manner in which such of the applicants as weresaid to have gone on to the deceased’s land, went there; what they didthere; how they took the deceased on to their land; and things like that.Our attention was also called to the contradictory statements made bythose witnesses at different times; to attempts made by them to embellishand add to their evidence; and to more or less obvious false-hood indulged in by some of them on certain matters. There is no doubtthat there is much force in that criticism of the evidence of these witnesses,and in the course of a very complete charge the learned Judge repeatedlycalled the attention of the Jurors to that aspect of the case. We haveourselves scrutinized the evidence. We find that the witnesses whospoke to the appligants entering the land of the deceased and leadinghim away spoke with definiteness on that point, although when it came todescribing details, they gave different versions. This is a commonexperience in our Courts even in the case of educated and intelligentwitnesses, and of the witnesses impeached in this case, one was a littlelad of ten, and two others illiterate and—to judge from the impression theyappear to have created in the mind of the trial Judge—stupid villagers.
We have gone farther, we have tested the oral evidence in- the light ofprobability, and the more we look at it in that way. the more we aresatisfied that the view the Jury took was a view that, having regard to all.the evidence and matters before them could by no means be said to beunreasonable or unsupported.
SOERTSZ S-P.J.—The King v. Abeywickrema.
Mr. de Silva, next asked us to consider whether the case as against, thethird and the< fifth applicants should not be differentiated from thatagainst the first, second, fourth, and sixth applicants inasmuch as, on theevidence before us, they appear not to have taken a very strong handin the transaction that resulted in the death of the deceased. We see nogood reason for such differentiation. Once they were found to be membersof an unlawful assembly, the extent of their participation is immaterialwhen we are considering their liability in law. In regard to that liabilitythey also serve who only stand and wait.
Finally Mr., de Silva, although his clients had not appealed on anyground of law, submitted to us that the trial Judge had not directed theJury adequately on the right of private defence and the law relatingthereto, and that the convictions entered against the first to the sixthapplicants ought not to be sustained for that reason.
It is true that the learned Judge did not explain to the Jury the wholelaw relating to the right of private defence, but he put to the Jurythe defence of the first to the sixth applicants and he told them • that ifthey accepted that version they should acquit them. This direction was,in our view, unduly favourable to the defence for, it was open to the Juryto accept the evidence put forward in support of the right of privatedefence and yet to find that some lesser offence had been committedinasmuch as according to that evidence the deceased had been disarmedand was helpless at the time the first applicant stabbed him.
In these circumstances, we have no alternative but to refuse theapplications of the first to the sixth applicants.
■ We now come to the case of the seventh applicant who has also pre-ferred an appeal on grounds of law. His case depending as it doesalmost entirely on circumstantial evidence, is one of some difficulty.There was some little evidence of a direct nature led by the Crown on theissue of the seventh applicant’s instigation of the murder, for the witnessCharles stated in the course of his evidence at the magisterial inquiryon the night of the murder .that the seventh applicant when driving offin his car to the Police Station, addressed his men saying, “ Whateverhas to be done must be done to-day. I will spend my whole fortune”.
. The learned Judge drew the attention of the Jury to the improbablenature of that evidence and it seems quite clear to us that he himselfwas not at all impressed by that evidence. We may therefore fairlyassume that the Jury either,rejected that evidence or considered it sodoubtful as not to take it into consideration. Be that as it may, forourselves, We prefer to ..consider the case of the seventh applicant dis-regarding this piece of evidence of the witness Charles as false or, to saythe least, of a very doubtful character.
In order to sustain the conviction of the seventh applicant we must besatisfied beyond reasonable doubt that he intigated the other applicantsto murder the deceased man, nothing less. In order to establish suchinstigation the Crown relied upon certain facts which may be brieflystated thus ;— ''
’ (a) The fact that the seventh applicant had a strong motive for desiringto be rid of the deceased.
SOERTSZ SJPJ.—The King v. Abeywickrema.
The.fact that about a month before the day of murder the seventh
applicant went to the Superintendent of Police, Galle, and toldhim that “he must get rid of the deceased as he feared thatthe deceased might murder him if he continued to live there
The statement made by the seventh applicant at the Baddegama
Police Station on the day of the murder and the manner in whichthat statement anticipated later events.
The conduct of the seventh applicant in going off to Galle from the
Baddegama Police Station instead of returning to his land whenSimon Abeywickrema’s telephone message was received at thePolice Station and a constable was sent to the land.
The circumstances in which the seventh applicant went to
Mr. Karunaratne, Proctor, and the statement he made to him.
It is from these facts that we are asked to infer that it was the instiga-tion of the seventh applicant that set the first to the sixth applicantsin motion and fiiat the instigation was that they should put the deceasedto death.
On all the evidence and matters before us, there can be no doubt thatthe deceased was a man of very dissolute character and that he had forsometime been constantly harassing the seventh applicant and thesisters who lived with him. The fact that he was coming back to theouthouse to live there only a few yards away from the mulgedera inwhich the seventh applicant and his sisters lived must have filled themwith apprehension and in that sense there was no doubt a motive for theseventh applicant desiring to be rid of the deceased. It is in that sense,we think, that the words he used according to the Superintendent ofPolice when he went to him, namely, that “He must get rid of thedeceased ” must be understood. He was extremely anxious to preventthe deceased coming there as his neighbour and the reasonable conclusionto which we are led by the facts (a) and (b) above is that the seventhapplicant was very anxious even at the eleventh hour to find some meansof preventing the deceased coming to live in the outhouse. They do notnecessarily lead to the conclusion that he was prepared to go to the lengthof killing the deceased or causing him to be killed in order to preventhis coming to live in the outhouse. In this connection, that is to say,when we are examining the question of motive, we must not forget thefact that has been proved, namely, that the first applicant himself had amotive of his own for being ill disposed towards the deceased. Only aweek before, that is to say, on September 29, 1942, he had made a com-plaint at the Police Station charging the deceased with having assaultedhis mother and his little brother Jayanoris.
In regard to (c), namely, the statement made by the seventh applicantat the Baddeigama Police Station, that certainly appears to us to be anincriminating circumstance against the seventh applicant for as we havealready observed that statement anticipates events' which had not yethappened with remarkable precision. But even so, it does not, in our view,do any more than show that .before the seventh applicant left for, theBaddegama Police Station he had conferred with the first to the sixthapplicants, and that he knew that something was going to happen andthat it would be wise for him to take the precaution of trying to exculpate
258SOERTSZ S.P.J.—The King v. Abeywickrema.
himself and also of helping the others with a defence in the event of aconflict between the deceased and them. We may even infer that theseventh applicant had instructed the first to the sixth applicants as to acourse of action in the event of the deceased man becoming aggressive,but we do not think we can fairly infer that he had actually instigatedthem to kill the deceased and that is what the Crown must establish aspart of its case.
So far as (d) is concerned, the conduct of the prisoner in driving off toGaffe instead of going to his land when he knew that something hadhappened there, that is conduct that involves him in suspicion, but wedo not think it leads necessarily to the conclusion that he acted in thatmanner because he had instigated the others to murder the deceased.On occasions like these it is notorious that men act on the impulse of themoment, and it would be dangerous and unfair to draw an adverseinference against a man merely because he did not act in a way thatcommends itself to us. It seems to us therefore, that the fact that theSeventh applicant drove off to Gaffe is too slender a read to rely upon forinviting us to draw the inference that he had instigated murder. Simi-larly in regard to the statement made by the seventh applicant toMr. Karunaratne at Gaffe to the effect that he had come to him in orderthat he might retain his services to defend him in the event his beingimplicated and to the answer he gave • Mr. Karunaratna when he wasasked “ What is this I hear in regard to the death of Arthur ” ? “ Yes,
I heard that after I came to Gaffe ”, we do not |hink we shall be justifiedin drawing the inference from this evidence- that the seventh accusedcame to retain .the services of Mr. Karunaratna because he was consciousof guilt. It may well be that as the seventh applicant himselfsays he realized that things having happened in that way, he mighthimself be implicated by his brothers Henry and Simon whowere not well disposed towards him, although he had not been presenton the land at the time of the conflict. In regard to the answergiven by the seventh applicant according to Mr. Karunaratna that hehad heard of the death of Arthur after he had come to Gaffe, it is suggestedthat he could riot have heard from any one of the death of the deceasedbefore he Went to Mr. Karunaratna, and that therefore that by answeringas he did, the seventh applicant betrayed himself by showing that he knewof the death of the deceased when he could not have known of it except asa man who had arranged for it. Here again we think that while that isa possible view, it is not the only reasonably possible view. He may haveheard of the death of the deceased While he was on the green outside theCourt-house for, by 'then the Gaffe Police Station had been, informed, andnews of this kind spreads like wild fire.
It is, as we have already observed, a point in favour of the seventhapplicant, that while he had a mbtive for desiring to be rid of the deceasedman, the first applicant himself had an independent motive against himand in those circumstances, it may well be that,.assuming that the seventhapplicant had instigated a certain course of action, the first applicantand those associated with him went beyond that instigation and actedin pursuance of the first applicant’s own motive believing that theywould be promoting the interests of the seventh applicant himself.
SOERTSZ SP.J.—The King v. Abeywickrema.
Scrutinizing the evidence and matters before the Jury in this way,we feel that they establish a case of strong suspicion against the seventhapplicant but we are unable to say that they establish his guilt beyondreasonable doubt.
The learned Judge directed the Jury very fully in regard to the principleson which they should act when they were examining a case that dependedon circumstantial evidence. He pointed out to them that in order tobase a conviction on circumstantial evidence they must be satisfied thatthe evidence was consistent with the guilt of the accused and inconsistentwith any reasonable hypothesis of his innocence. We can, however,imagine how difficult it must be for a Jury completely to assimilate all theprinciples governing circumstantial evidence in'the course of a chargehowever adequate it may be particularly if that Jury were dealing for thefirst time with a case of circumstantial evidence, and it is possible thatdespite the unexceptionable charge—if we may respectfully say—of thelearned trial Judge in this case the Jury may have been under theimpression that if there was a case of strong suspicion against an accusedperson and he refrained from going into the witness box it was open tothem to convict him. But of course the charge said nothing of the kind,for it was clearly to the effect that if all the facts and matters before theJury made out a prima jade case against an accused which case could,if at all, only be met by explanations from the accused and he appearedto be in a position to make his explanations if he was prepared to havethem put to the test, and yet he offered no explanations then a verdictof guilty was justifiable.
The seventh applicant put his character in issue and nothing has beenproved against him. He is quite a young man who appears to hareled a respectable life in very difficult surroundings and that too is a factwhich we must pay some attention to when we are considering whatinferences should be drawn from such facts as the Crown r.elied upon toestablish its case. To put it in a few words our view is that the mostthat can be said against the seventh applicant is that there probablywas some instigation forthcoming from him. But that Will not do.We ought to be able to say if we are going to sustain the conviction, thatthe instigation that was forthcoming from him was an instigation tocommit murder.
To conclude we are quite satisfied that despite many deplorableattempts to cloud the real issues in the case by innuendoes and suggestionfor Which there does not appear to be the least scintilla of justification,the learned trial Judge saw to it that the case for the Crown and that forthe defence were sufficiently before the Jury, and that he charged them,if we may so with respect, completely and correctly on all the importantquestions that arose in the case, but nevertheless to use the words ofLord Hewart “ the conclusion at which we have arrived is that the caseagainst the seventh applicant which we have carefully and anxiouslyconsidered and discussed was not proved with that certainty which isnecessary in order to justify a verdict of guilty ”1.
' (1942) 28 C. A. B. 141.
280WUE YEWASDENE J.—Mohtamed and N-uwara Eliya Police.
We, therefore, are of opinion that this is a case which comes within therule section 5 (1) of the Court of Criminal Appeal Ordinance. We give theseventh applicant the benefit of the doubt which we have in regard to hisguilt and set aside his conviction and acquit him.
THE KING v. ABEYWICKREMA et al