The King t>. CtunntUlekf
[Court op Criminal Appeal)
1949 Present: Canekerafoe, Gratiaen and Gunasekara JJ.
THE KING o. GUNATILLEKE
Appeal No. 17 of 1949
S. C. 68—M. C., Oamjxiha, 46,118
Court of Criminal Appeal—Evidence, of good character led by accused—Directionby Judge that evidence should not be. taken into account—Misdirection—Relevancy of such evidence—Evidence Ordinance, section 53.
Whore the aecuso:l led ovidence of good character and tho Judgein his charge directed t.ho Jury a $ a rnattor of law that they“must not pay tho slightest attention” to tho evidence of goodcharacter—
Held, that thoro was a misdirection. In criminal proceedings thefact that a person is of good character is relevant under section 63 ofthe Evidonce Ordinance and it is therefore a matter which tho Juryshould take into consideration before arriving at a vordict.
GRATIAEN J.—Tke King v. QunatWeke
ApPEAL from a conviction in a trial before a Judge and Jury.
H. V. Per era, K.C., with T. GoonetiUeke and A. B. Perera, for accusedappellant.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 5,1949. Gratiaen J.—
The appellant in this case was charged with the murder of P. K. Karuna-ratne Silva (to whom I shall hereafter refer as “ the deceased ”}. It iscommon ground that prior to July 17, 1948, on which date the deceasedwas stabbed once by the appellant in the upper arm and died in conse-quence, there had been no ill-feeling between them. The appellantand the deceased were at the time students of Ananda VidyalayaSchool in Gampaha. On July 17 there was an earlier incident in the courseof which the deceased struck the appellant. This incident was reliedon by the prosecution as providing the motive for what occurred laterin the day when the parties met again, on which latter occasion theappollant at some stage, as he himself admitted at the trial, stabbedthe deceased. The only eye-witness called by the Grown to speak tothe events of the second incident was the deceased's father. Accordingto him, he and the deceased were returning from the Police Stationafter making a complaint regarding the earlier incident, when theaccused’s father, unaccompanied in the first instance, came up andstruck the deceased; thereupon the accused arrived on a bicycle, dis-mounted, and, having first attacked the witness, rushed up and stabbedthe deceased.
In his dying declaration, however, which was recorded on the sameday by a Justice of the Peace, this witness said that his son had beenstabbed not by the appellant but by the appellant’s father, and in hisaccount to the Police of what had happened he merely stated, withregard to the injuries sustained by the deceased, that he “ saw himbleeding”. Mr. Perera submits that these inconsistent statements,and particularly the dying declaration implicating the appellant’s father(who admittedly did not stab the deceased at all) create serious doubtsas to whether the witness did in fact observe how the deoeased cameby the fatal injury. In other words, the inconsistency becomes materialwhen the circumstances in which the stabbing occurred came to beconsidered by the Jury.
A witness Amolis was also called for the prosecution. He claimedno personal knowledge of what had taken place, but stated that thedeceased had told him that it was the appellant who had stabbed him.His evidence was attacked by the defence as untrue.
The appellant gave evidence in his own defence. Ho admitted havingstabbed the deceased, but his version is that he did so in entirely differentcircumstances to those spoken to by the deceased’s father. Accordingto him he arrived on the sceno after the altercation had commenced,and saw the deceased on the point of stabbing the appellant’s father.
GRATIAEN .1.—The King v. QunctUlcke
He thereupon stabbed the deceased in the arm in order to save his father’slife. On this version, if accepted by the Jury, his action was justifiedand he would have been entitled to an acquittal.
At the conclusion of the learned Judge’s charge the Jury retired andin due course returned a verdict against the appellant that he was guiltyof the oHence of culpable homicide not amounting to murder. TheForeman explained, in answer to the Judge, that in their view theappellant “ had no murderous intention ". The appellant was sentencedto a term of 10 years’ rigorous imprisonment.
The main ground of appeal was that at the trial the defence had calledas a witness the appellant’s Headmaster who gave evidence of theappellant’s good character, but that the learned Judge in his summingup had gravely misdirected the Jury by tolling them inter alia “ as amatter of law ” that they must not pay “ the slightest attention to thiscircumstance
The presiding Judge’s charge to the Jury on this matter was asfollows:—
“ Then, gentlemen, you are also told that the character of an accusedperson is a fact to be taken into consideration, a circumstance thatsome judges do direct juries in cases on, that the good character of anaccused person is a factor to be taken into consideration, but speakingfor myself as a matter of law I direct you that you will not pay theslightest attention to that circumstance, because if you have a manof the most exomplary character you are not going to act upon thatif a case is proved beyond reasonable doubt. On the other hand,a man may be a villain. If the evidence does not prove the casebeyond reasonable doubt against him the fact that he is a villain,his character has nothing to do with it. If after hearing the wholeof the case you have doubts in your minds, it is immaterial even ifthere is evidence of bad character. You must give the benefit ofthe doubt to the accused. Similarly if the cpse is proved beyondreasonable doubt against an accused person the fact that he has gota good character has no bearing on the question. It is sometimesput in this way by judges. If you find doubts in your minds on hearingthe case for the prosecution and the defence and if the man’s characteris a good character, then give Hie benefit of the doubt to him, I gofurthor and say, if you have any doubts in your minds after consideringthe prosecution and the defence, after viewing the whole case together,then you must give the benefit of the doubt to the accused/'
The majority of us are of the opinion that the effect of this direction,taken as a whole, was to withdraw entirely from the Jury’s considerationthe evidence relating to the appellant’s good character, and that theJury must have understood that, whatever view they might be disposedto take of the other evidence in the case, they were precluded in lawfrom attaching any weight whatsoever to the evidence of the appellant’sgood character. Upon that interpretation of the summing up, thelearned Judge has misdirected the Jury in law.
In this country, section 53 of the Evidence Ordinance expressly declaresthat in criminal proceedings the fact that the person accused is of goodcharacter is relevant, and his good character is therefore one of the
Hun Banda v. Hcrath
matters which, in view of the definition of the word “ proved ” in section3, the Jury should take into consideration before arriving at a verdict.It was therefore a misdirection to tell the Jury “ as a matter of law ”that they “must not pay the slightest attention’’ to evidence of theaccused’s good character. Such evidence may of course in the factsof a particular case carry little or no weight but cannot properly bedeclared to be totally irrelevant. In Rex v. Noble1 the accused puthis character in issue, but the Chairman “ categorically told the Jurythat this consideration was immaterial and not for them ”. The Court•of Criminal Appeal in England quashed the conviction on the groundthat there was misdirection. The majority of us think that this decisionshould be applied in the present case.
The only question which remains for consideration. is whether theconviction of the appellant can be upheld notwithstanding the rulingthat there has been misdirection in law. There was a conflict of evidencewith regard to the circumstances in which the deceased was stabbed,and the majority of us find ourselves unable to arrive at the conclusionthat the Jury, if properly directed, would not have taken a view favourableto the defence. We cannot therefore say that no substantial miscarriageof justice has actually occurred. The conviction is accordingly quashedand the appellant is acquitted.
THE KING v. GUNATILLEKE