The King v. Andris Silva.
Present: Moseley S.P.J. and de Kretser and Wijeyewardene JJ.
THE KING v. ANDRIS SILVA et al.
9—M. C. Balapitiya, 35,765.
Court of Criminal Appeal—Appeal on question of fact—Function of Court—■Expression of opinion by Judge on question of fact after a warning to theJury-—Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 5 (1).
In an appeal involving questions of fact only it is not the function ofthe Court of Criminal Appeal to retry a case, which has already beendecided by a Jury.
The Court in such a case is only required to say whether the verdictof the Jury is unreasonable or whether it cannot be supported havingregard to the evidence.
It is not a misdirection to tell the Jury that they must not pay theslightest attention to any suggestion put to the witness in cross-examination unless such suggestion is supported by. proof.
There is no objection to the expression by the Judge in his chargeto the Jury of opinions on questions of fact where he cautioned the Jurythat such matters were entirely within their province and that theyshould reject his views unless they happened to coincide with their own.
Evidence that the accused were discharged after the preliminaryinquiry before the Magistrate is irrelevant and should not go to theJury.
PPEALS from a conviction for murder at the 1st Southern Circuiton questions of law and an application for leave to appeal on
The Court granted leave to appeal on the facts which were arguedin the first instance.
The grounds of appeal are stated in the judgment.
R. L. Pereira, K.C. (with him M. T. de S. Amerasekere, K.C., S. Alles,and N. M. de Silva), for the accused, appellants.—The appeal on the lawis accompanied by an application for leave to appeal on the facts. Todeal first with the fact, the verdict of the jury is unreasonable andcannot be supported on the evidence of the three alleged eye-witnesses,viz., Upasiri and Anulawathie, two children of the deceased, and oneSimon. The evidence given by Upasiri at the trial relates only to thefact of the shooting of William by the first accused and is totally contra-dictory of all matters the witness had sworn to in the Magistrate’s Courtand in the first information given to the Police. Similarly, the other twowitnesses too have contradicted each other and themselves grossly. It isclear that the witnesses were tutored to implicate not only these twoaccused, but also one David, who was discharged at the end of theMagistrate’s investigation. Even these two accused had been dischargedby the Magistrate and it was only at the instance of the Attorney-Generalthat the proceedings were re-opened against them.
[At this stage leave to appeal on the facts was granted and theCourt asked to be furnished with instances in which the verdict ofa jury had been set aside on the ground that it was unreasonable orcculd not be supported having regard to the evidence.]
The King v. Andris Silva.
G. P. Jayatilleke, K.C., S.-G. (with him E. H. T. Gunasekere, C.C.),for the Crown—This Court will not set aside a verdict on questions offact except on the strongest evidence—R. v. Graham', R. v. HancoxThe Court of Criminal Appeal does not sit to try cases again. To do sowould be' to substitute another form of trial for trial by jury—R. v.Jenkins', R. v. Simpson'. Some cases in which the Court did interfereare R. v. Matthews', R. v. Smith", R. v. Hall', R. v. Scranton", R. v.Armstrong", R. v. MargulasR. v. Shejsky", R. v. Rice", R. v. MeLocklin", R. v. Wallace", see also Archbold’s Criminal Pleadings andPractice (30th ed.), pp. 333 and 334. Those cases, however, are notapplicable to the circumstances of the present case inasmuch as therewas evidence before the jury which they could have accepted butdid not.
. R. L. Pereira, K.C., called upon to address on the law.—The notice ofappeal sets out ten grounds.
In dealing with the question of the credibility of the witnesses for theprosecution, the jury were directed to ask themselves the question“ Are the witnesses for the prosecution influenced by any motive tocome here and perjure themselves?”. Thus an unwarranted burden wascast on the defence and the direction tended to make the jury believethat, if no adequate motive was proved for the witnesses to give falseevidence, the witnesses had to be believed.
The Judge failed to separate the cases of the two accused. Beyondreadirig section 32 of the Penal Code, he did not indicate in any way anyevidence from which the jury could have inferred that the accused wereacting with a common intention.
The general trend of the charge to the jury was calculated to persuadethe jury to accept the Judge’s own conclusions on important questionsof fact.
The Judge drew the attention of the jury to the contradictions in theevidence of Anulawathie and Upasiri but at no stage did he warn themof the possible danger of acting on such evidence.
The question whether the accused were discharged by the Magistratewas wrongly ruled out as irrelevant. The fact of the discharge taken inconjunction with the fact that the girl Anulawathie changed her evid-ence at the Assize Court would have influenced the minds of the juryconsiderably.
G. P. Jayatilleke, K.C., S.-G., in reply.—An appeal cannot succeedowing to any weaknesses in small points picked out of a long and carefulsumming-up—R. v. Wyman". A summing-up need not touch on all the
1 4 Cr. App. R. 218.
1 8 Cr. App. R. 193.
5 2 Cr. App. R. 247.
2 Cr. App. R. 128.
8 12 Cr. App. R. 247.
14 Cr. App. R. 81.
7 14 Cr. App. R. 58.
8 15 Cr. App. R. 104.• 16 Cr. App. R. 147.
17 Cr. App. R. 3.
17 Cr. App. R. 28.
20 Cr. App. R. 21.
12 22 Cr. App. R. 138.
" 23 Cr. App. R. 32.
»■ 13 Cr. App. R. 163.
MOSELEY S.P.J.—The King v. Andris Silva.
minute details of the case—R. v. Farrington '. See also R. v. NichollsR. v. Pope * R. v. Smith ', Archhold’s Criminal Pleadings and Practice(30th ed.), p. 332.
[Wijeyewardene J.—Has the proviso to section 5 (1) of the Court ofCriminal Appeal Ordinance ever been applied in a murder case?]
Yes, it has held that the proviso makes no distinction betweena capital case and any other case—Woolmington v. Director oj PublicProsecutions’, R. v. Lee Kun°.
The issues of fact were definitely left to the jury. The Judge hasgiven his opinion on the facts but at the same time has told the jurythat they were not bound by his view—R. v. O’Donnell7.
M. T. de S. Amerasekere, K.C., in reply.
Cur. adv. vult.
July 16, 1940. Moseley S.P.J.—
These are appeals against conviction on grounds involving questions oflaw, and applications for leave to appeal on grounds of fact. Theappellants were convicted of murder at Galle Assizes on May 29, 1940,and sentenced to death by Soertsz J. There were two counts in theindictment. The first alleged that the appellants committed murderby causing the death of one William Silva ; the second that in the courseof the same transaction they committed murder by causing the death ofChalo Nona, who was the wife of William Silva. The appellants. hadbeen originally charged in the Magistrate’s Court together with a thirdaccused, one David. All three were discharged by the Magistrateand it was at the instance of the Attorney-General that proceedings werereopened against the two appellants. The fact of their previousdischarge is mentioned since one of the grounds of appeal is in connectiontherewith.
After hearing some of the submissions of the Counsel for the appellantswe granted leave to appeal on the facts and that aspect of the appealwas first argued.
Now section 5 (1) of the Court of Criminal Appeal Ordinance sets outspecific grounds upon which the Court may allow an appeal against aconviction. The relevant part of the section which particularly appliesto the present case, in so far as the appeal is on grounds of fact, is asfollows : —
“ The Court of Criminal Appeal on any such appeal
shall allow the appeal if they think that the verdict of the jury shouldbfe set aside on the ground that it is unreasonable or cannot be supportedhaving regard to the evidence
Since the section further provides for the determination of appealson the ground of a wrong decision of any question of law, it must beassumed that the words above-quoted presuppose that the verdict of theJury has been arrived at upon evidence properly admitted and after aproper direction by the Judge.
■ J Cr. App. R. 113.
1 Cr. App. R. 167.
4 Cr. App. R. 123 at 127. '
12 Cr. App. R. 219 at 221.
* 11 Cr. App. R. 81 at 84.5 23 Cr. App. R. 72 at 96.4 11 Cr. App. R. 293.
MOSELEY S.P.J.—The King v. Andris Silva.
The section follows precisely section 4 (1) of the Imperial CriminalAppeal Act, 1907, and confers upon the Court a power which is capableof wide application ; but from its inception, in 1908, the English Courthas shown in a series of decisions its disinclination to question a verdictgiven by at Jury on questions of fact. In R. v. Martin1 an appeal heardand determined within two months of the first sitting of the. Court,Channell J. prefaced the judgment of the Court with these words : —
“ The case has been argued as if this Court was to retry the case, but thatis not its function.” A year later in R. v. Jenkins ’ the Lord Chief Justiceobserved : “ We have had to point out from time to time that this Courtdoes not sit to try cases again.” The Solicitor-General brought to ournotice a number of cases in which verdicts have been set aside by theCourt of Criminal Appeal and Counsel for the appellants asked us toinfer from these decisions that the point of view originally expressed by theCourt has been modified. Since the present case is the first to comebefore this Court in which it has been sought to reverse the verdict of aJury on a question of fact it may be convenient to refer briefly to thesecases, for it appears to us that in each there exists a feature whichenabled the Court to distinguish it from those in which they had firstenunciated the principles which they deemed to govern their procedurein the determination of such appeals. In R. v. Mathews’ identificationwhich alone connected the accused with the offence charged, had beenobtained by unsatisfactory means. In R. v. Smith. ‘ the evidence of theprosecutrix on a charge of rape was uncorroborated and, according tothe argument of Counsel as reported, the Jury had not been warnedof the danger of acting on her evidence alone. It would seem thereforethat the conviction was quashed not on a question of fact alone. InR. v. Scranton‘ the appeal was brought on the certificate of the trialJudge who indicated that the verdict was unsatisfactory, a fact whichthe Court held to be an element to be taken into consideration. InR. v. Armstrong ° the Court, by a majority decision, held that it was notsafe to convict upon the slight evidence before the Jury. In R. v.Margulas 7 arid R. v. She j sky 8 there had been three co-accused, of whomone had been acquitted by the Jury upon precisely the same evidenceas that upon which the other two were convicted. The appeals of thelatter, were therefore allowed. . In R. v. Rice’, which was a case ofunlawful carnal knowledge, the Court held that the story of the prosecu-trix was an impossible one. Moreover the defence had proved an alibiby two unimpeachable witnesses. In R. v. McLocklin10 the convictionrested on the evidence of identification given by one witness only, whohad in the first place expressed doubt and only became positive of theidentity of the accused under pressure from the police. Lastly, in thecase of R. v. Wallace " in which the evidence was purely circumstantial,the Court expressed themselves * as “ not concerned with suspicion,however grave ” and held that the case was not proved with that certaintywhich is necessary to justify a verdict of guilty.
1 1 Cr. App. R. 52.*14 Cr. App. R- 81.717Gr. App. R. 3.
1 2 Cr. App. It. 247.. 8 15 Cr. App. R. 104.8 17 Cr. App. R. 28.
3 12 Cr. App. R. 247.816 Cr. App. R. 147,820Cr. App. R. 21.
10 22 Cr. App. R. 138.'1123 Cr. App. R. 32.
MOSELEY S.P.J.—The King v. Andris Silva.437
It does not seem to us that these decisions, or any one of them, indicateany material departure from the view that it is not the function of aCourt of Criminal Appeal to retry a case which has already been decidedby a Jury.
In the case now before us the prosecution relied mainly upon theevidence of three persons, each of whom claimed to be an eyewitness ofpart or the whole of the incident. Two of these are children of thedeceased, namely, Anulawathie, a girl of 15, and Upasiri, a boy of 11;the third is Simon who appears to have accompanied the male deceasedon his way home on the evening in question. Each one of these threepersons was in a position, if his or her evidence is to be believed, to seewhat happened in the course of the incident. 'In the case of each,however, there are unsatisfactory features which might very well cause aJury to entertain serious doubts as to the value of their evidence.Simon, for instance, in his first statement to the police implicated theaccused rather by inference than by claiming to have seen them play theparts which he subsequently allotted to them. His claim to haveactually seen what transpired, was, however, corroborated by otherwitnesses to whom, unless their evidence and that of a police sergeantis rejected, he made statements implicating the appellants very shortlyafter the incident. Anulawathie, who in the Magistrate’s Court hadimplicated the man David as well as the two appellants, at the trialeliminated him until her previous evidence was put to her in cross-examination. She then denied that she had made in the Magistrate’sCourt innumerable statements which she is recorded as having made.The boy Upasiri professed at the trial to have no recollection of whathe had said in the Magistrate’s Court, and the' Jury were praticallyinvited by the Judge to reject his evidence.
Now we are asked to say that the verdict is unreasonable or that itcannot be supported having regard to the evidence, that is to say, in thiscase, the evidence of these three witnesses who gave direct evidencesupported by the corroborative evidence of the persons to whom state-ments are said to have been made by them shortly after the incident.So far as this particular aspect of the appeal is concerned, we mustassume, and indeed we have no difficulty in so doing, a proper directionby the Judge. We have carefully considered all the points put to usby Counsel for the appellants, notably, that the evidence of Anulawathieas to the range at which the shots were fired is inconsistent with themedical evidence ; that Simon’s evidence is not only contradictory ofAnulawathie’s but of his own previous statement; that Anulawathie’sevidence at the trial indicated a desire on her part to come into linewith Simon.
The Solicitor-General cited the case of R. v. Hancox1 in which Pickford
J.observed as follows: —
“ This case turned on the manner in. which the witnesses gavetheir evidence ; there was a proper direction to -the Jury, and the Courtdoes not see that it can interfere with the verdict without substituting
» 8 Cr. App. R. 193, at 197.
MOSELEY S.P.J.—The King v. Andris Silva.
itself for the Jury, which was the proper tribunal to decide the matter.
It is not necessary to say whether we would have given the same
So here, it is not necessary for us to say whether we would have given thesame verdict. We do not expect Jurymen to be endowed with legaltraining nor can we say that our impressions gathered by a perusal ofrecorded evidence are as valuable as those of persons who have heardwitnesses give evidence. We might say that the arguments for theappellants created a strong impression on our minds, and if the Jury hadseen lit to acquit the accused we should not have been able to takeexception to the verdict. All that we are required to say is that it hasnot been shown to our satisfaction that the verdict is unreasonable orthat it cannot be supported having regard to the evidence. The appealson grounds of facts fail.
The notice of appeal on questions of law sets out ten grounds of appeal.
. Ground 1 is, in fact, that the Jury were directed that, unless a motivewere proved for the giving of false evidence by the witnesses.for the prosecutioh, this evidence should be believed. The passagequoted from the charge to the Jury, taken away from its contextmay appear to be somewhat strongly put, but if it is read in its contextand, if for the word “ motive ” the word “ reason ” is substituted, thepassage seems to us entirely unobjectionable and we do not think thatthe Jury can have been under any misapprehension in this respect.
Grounds 2 and 3 deal with the question of the existence of commonintention on the part of the two appellants. As far as count 1 of theindictment is concerned it does not appear to us that any directionon this point was necessary, since the medical evidence showed thatnecessarily fatal injuries were caused both by a firearm and a cuttinginstrument which are the weapons which the eyewitnesses placedrespectively in the hands of the first and second appellants. In any case,in our view, the charge on this point was adequate. In regard to count 2,since it is alleged that the two acts of killing took place in the course ofthe same transaction it can fairly be presumed that the common intentionwhich clearly existed in the beginning continued throughout thetransaction.
Ground 4 alleges that the Judge found as facts several matterswhich should have been left to the Jury, notably in regard to the state ofthe light which existed at the time of the incident. This is a matterupon which there was no evidence to contradict that given by thewitnesses for the prosecution. Moreover, particularly where the extracts,to which objection is taken, are read in their context, they appearentirely unobjectionable. This ground further included an objectionwhich is reiterated in ground 9, to the direction of the Judge that theJury should not pay the slightest attention to any suggestions put to thewitnesses in cross-examination unless those suggestions were supported byproof. We need say no more than that in our view that is a properdirection.
Ground 5 refers to the discrepancies in the evidence of the witnessesfor the prosecution and alleges that the Judge did not warn the Jury
– MOSELEY S.P.J.—The King v. Andris Silva.
of the danger of acting upon such evidence. It is obvious that inthe course of a very careful and exhaustive summing-up these discre-pancies and contradictions were put in great detail to the Jury. Thequestion of the credibility of the witnesses, in the light of the un-satisfactory features in their evidence could not have been dealt with moreadequately.
Grounds 6 and 7 contain an objection to expressions by the Judge ofhis own opinion on questions of fact. It is sufficient to say that theJudge repeatedly cautioned the Jury that such matters were entirelywithin their own province and that they should reject his views unlessthey happened to coincide with their own.
Ground 8 alleges that the Judge failed to put the case for the defenceto the Jury. The defence relied upon the weakness of the case for theprosecution and in particular upon the discrepancies and contradictionsin the evidence. Since these, as we have already observed, were broughtadequately to the notice of the Jury we do not think it can fairly be saidthat the case for the prosecution was favoured in this respect.
Finally, ground 10 is in connection with the discharge of the accusedat the close of the preliminary proceedings before the Magistrate. Atthe trial, Counsel for the accused in cross-examination asked a policewitness if the Magistrate had discharged the accused. The Judgeinterposed that the matter was irrelevant. Counsel for the accusedappears to have agreed that the Judge should direct the Jury to put thematter out of their minds. Counsel for the appellants has urged that thefact that the accused had been discharged in the Magistrate’s Court wasrelevant as bearing upon the alteration by Anulawathie of her evidence.It seems to us that it is quite unnecessary to go beyond that alteration.The alteration was patent ; the reasons underlying it, immaterial. Theobjection to evidence of the discharge going to the Jury is obvious.
The Judge’s charge to the Jury was, as we have already observed,exhaustive and extremely careful. Taken as a whole it can only bedescribed as unexceptionable.
It is almost unnecessary, in these circumstances, to refer to theauthorities cited by the Solicitor-General in regard to the attitude whichthis Court should adopt in regard to misdirection. It may, however,not be out of place to quote the following observations of Lord Coleridge J.in the case of R. v. Wyman
“ Voluminous particulars illustrative of the original grounds ofappeal were furnished to the Court at a late stage. They were evidentlythe ^creation or conception of some learned person, who, having thetranscript of the shorthand notes of the evidence and of the summing-up, directed much ingenuity and industry to picking out from a longand careful summing up a number of small points, most of which arefrivolous. On these we are asked to Upset the conviction if we canfind any possible slight oversight or error of statement or some inferenceto be possibly drawn from a chance phrase. or possible immaterialmisconstruction of evidence. The Court does not deal with mattersof this kind. We are here to deal only with substantial points of
1 13 Cr. App. R. 163. at 164.' '
SOERTSZ J.—In re de Silva.
misdirection. We strongly object to this practice which is growing,and we hope that in the future it .may be more honoured in the breachthan in the observance. It is not fair to learned Judges and otherswho have to sum up in elaborate cases for their remarks to be subjectedto the minute scrutiny which has been applied in this case.”
The appeals fail on all grounds. The convictions and sentence areaffirmed.*
THE KING v. ANDRIS SILVA et al