The King v. L. Seeder de Silva.
[Court of Criminal Appeal.]
Present: Howard C.J. and Keuneman and Nihill JJ.
THE KING v. L. SEEDER DE SILVA.
No. 1 of 1940fS. C. No. 5/M. C. Kalutara, 44,026.
Misdirection of law—Misdirection of fact no ground of appeal—Circumstantialevidence—Duty of Judge to direct the Jury on law applicable—Wherethere is no case to go to the jury—Duty of Judge to direct a verdict ofnot guilty—Grounds of appeal—Failure to state grounds in notice—Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 4 (b).
A wrong direction as to the law, which obtains gener-Jly in the class ofcases to which the particular case belongs, or as to the law applicable to-the special facts of the case is a misdirection of law.
A mistake of fact or an omission to refer to some point in favour of theaccused is not a misdirection of law but falls under “any other ground ’*within the meaning of section 4 (b) of the Court of Criminal AppealOrdinance.
In a case resting upon circumstantial evidence the Judge shouldexplain to the jury the main principles that should be followed inappreciating such evidence. But where the charge contains passageson which it is open to the jury to find an innocent as well as a guiltyexplanation in the circumstances proved, the charge cannot be said to beunfair or prejudicial to the accused.
Section 234 (1) of the Criminal Procedure Code imposes a duty on theJudge, if he considers there is no evidence to go to the jury that theaccused committed the offence, to direct a verdict of “ not guiltyThe Court of Criminal Appeal will as a general rule refuse to entertaingrounds not stated in the notice of appeal.
But where the appellant is without legal aid and has drawn his ownnotice the Court will not confine him to the grounds stated in the notice.
PPEAL from a conviction for murder at a trial held at Kalutara inthe Western Circuit. The grounds of appeal are as follows : —
(1) As a matter of law there was no case to go to the jury.
(2) In dealing with a possible theory involving the guilt of the accusedthe learned Judge addressed these words to the jury, “ I cannot refer toanything that he may have said to the Police because the law preventsany reference being made to that ”, It is submitted that this is a mis-direction in that the words used by the Judge, having regard to thecontext in which they were used, suggest or tend to suggest to the jurythat the accused had made a confession to the Police.
In the course of his charge the learned Judge said, “ the murderer,whoever he may be, or others acting with the murderer had stabbed thewoman, laid out her body, placed it on a mat and pillow in a decentmanner, covered it with a cloth, arranged her hands, placed flowers,placed a candle, locked the door and gone …. was it the accusedor, was it anyone else who did all this ? ” It is submitted that this wasa misdirection in that it identifies the person who locked the door with theperson who stabbed the woman. Having regard to the fact that it was
The King v. L. Seeder de-Silva.
the accused who unlocked the door for the Police to enter, it is submittedthat this misdirection was calculated to cause grave prejudice to theaccused.
In dealing with the admittely abnormal behaviour of the accusedin general, the Judge directed the jury to consider whether such behaviourwould be sufficient to bring the accused within the exception created bysection 77 of the Ceylon Penal Code, but failed to direct the attention ofthe jury to the bearing of such abnormality on the question of theinferences to be drawn, with reference to the alleged guilt of the accused,from the conduct of the accused in relation to the incidents of the day inquestion. Referring to the possibility of the accused having dressed andlaid out the body of the deceased, the learned Judge directed the jury toconsider whether the master of a house finding his servant stabbed,would act in that way, without immediately informing the Police,implying thereby that the jury had to consider whether a man wouldnormally act in that way, if the deceased had been killed by someoneelse. It is submitted that the failure to draw the attention of the juryto the fact that the accused was abnormal in his general behaviour is anon-direction amounting in the circumstances to a misdirection.
In the absence of proof that the blood found on exhibits P 2 andP 3 was human blood, or a tittle of evidence indicating it to be such, theJudge was wrong in directing the jury to regard it as an item of realevidence, which may be taken into account-by them.
H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.C., S. Allesand N. M. de Silva), for the accused, appellant.—The furthest the evidencegoes, is to indicate opportunity. This is insufficient. It does notexclude the possibility of a person other than the accused committing theact. If this is the case, the fact is not inconsistent with the hypothesis ofinnocence.
The evidence is to the effect that it was the accused who unlocked thedoor for the Police to enter. The effect of the learned Judge’s charge tothe jury is to identify the person who unlocked the door with themurderer. (Counsel cites the relevant passages.) This is a misdirection,and moreover prejudicial to the accused.
Statements in the nature of confessions made by accused persons tothe Police officers are inadmissible in evidence (vide section 25, EvidenceOrdinance). This is a well-known rule of evidence and it is inconceivablethat the jury are unacquainted with this proposition, so that the learnedJudge’s statement, “ I cannot refer to anything that he may have said tothe Policfe because the law prevents any reference being made to that ”,in effect, suggests to the jury that the accused made a confession to thePolice. Statements of accused to the Police other than confessions areadmissible. This is all the more reason why the jury might have inferred,that the statement of the accused to the Police was to the effect that hecommitted the offence.
The evidence indicates that the behaviour of the accused is abnormal.Assuming that the body was arranged by the accused, this circumstancedoes not identify him as the murderer. Considering the feelings of theaccused for the deceased it is not unnatural that he should have acted inthis way, seeing the woman murdered.
The tCr.g v. L. Seeder de Silva.
There is no case to go to the jury. Section 234, Criminal ProcedureCode, provides that the Judge should direct the jury to return a verdict ofnot guilty when after the prosecution is closed the Judge considers thatthere is no evidence, that the accused committed the offence. Takingthe case for the prosecution as a whole, one cannot say that a prima faciecase is made out against the accused. This is a matter for the Judge toconsider even though there is no submission from Counsel for the defence.
J. W. R. llangakoon, K.C., Attorney-General (with him E. H. T.Gunasekera, C.C.), for the Crown.—Points 2 to 5 are not questions of ldw.They are questions of fact. According to section 4, sub-section (b), of theCourt of Criminal Appeal Ordinance, No. 23 of 1938, there is no right ofappeal on facts without leave of Court. Leave has not been obtainedhere.
Taking the evidence adduced in the chse as a whole there is stringentproof of circumstances to support the charge against the appellant. Insuch cases the absence of an explanation from the accused militatesagainst him. (The Attorney-General here referred to various items ofevents and circumstances and cited Wills’ Circumstantial Evidence, -pages314-316, 7th ed.) The principles laid down in Wills have been adoptedhere. See Inspector Arendsly v. Wilfred Pieris1 and cases referred to inDias’ Criminal Procedure Code, Vol. I., p. 640.
Whether there is evidence to go to the jury is a question of law (seeBenjamen Pearson s). Although this point was not raised by Counsel atthe trial there was sufficient circumstantial evidence from which the jurymay legitimately draw an inference adverse to the accused. (TheAttorney-General here referred to the evidence.) Under such circum-stances it is submitted $iat the learned Judge could not havewithdrawn the case from the jury.
The mere presence of some expressions used by the Judge in his chargewhich are open to criticism will not avail the appellant. The summingup must be considered as a whole. The burden is on the appellant toshow that notwithstanding the presence of some expression open toobjection there has been some substantial miscarriage of justice. Unlessthe appellant establishes this, the Court will not interfere. See thejudgment of the Lord Chief Justice in the case of Dodds’.
Even when the point of law is a good one, which the Court will giveeffect to, the Court may dismiss the appeal if no substantial miscarriagehas resulted. See the case of Allen *. On the question of miscarriage ofjustice it is open to the Court to consider the whole of the evidence andeven to admit fresh evidence. See Rex v. Abraham George=. TheAttorney-General referred to the contents of a diary the entries in whichhad been ruled out by the Judge. No doubt it was open to the prose-cution to prove the handwriting of the accused. There is ample proof thatthe document was in his possession. Having regard to the circumstancesand the contents of the dairy it is submitted that the material is ampleto create the presumption that the appellant was acquainted with itscontents. See Phipson on Evidence, 5th ed., p. 241.
l10 Ceylon Law Weekly 121.3 1 Crim. App. Rep. 77.
3 1 Crim. App. Rep. 68.* 1 Crim. App. Rep. 19-
5 1 Crim. App. Rep. 168.
HOWARD C.J.—The King v. L. Seeder de Silva,
The Judge is not bound to put forward probable theories not advancedat the trial. See the case George Joseph Smith
Where circumstantial evidence has been less stringent convictions forthe offence of murder have been upheld. See Robertson5 and PakalaNarayana Swami v. King Emperor
H. V. Perera, K.C., in reply.—The cases cited by the Attorney-Generalare distinguishable. In those cases, without an exception, certain incri-minating circumstances pointing to the guilt of the accused were definitelyproved. In this case all that one can say is that there was evidence ofopportunity. The distinction between suspicion and proof has beenforcibly brought out in Justice Darling’s charge to the jury in SteinMorrison’s Trial at p. 275 of the report in the Notable British TrialSeries.
The burden of proof does not shift on to the accused unless and untilsome incriminating circumstances have been proved by the prosecution.In this case there is no case to go to the jury. See William Wallace*.The grounds on which the Court will hold that there has been amiscarriage of justice are considered in Cohen v. Bateman '.
Cur. adv. vult.
June 12, 1940. Howard C.J.—
Several points have arisen for consideration in the hearing of this appealwhich is the first to be heard under the Court of Criminal Appeal Ordi-nance, No. 23 of 1938. In his notice of appeal the appellant relies onfive grounds of appeal. The Attorney-General has taken the preliminaryobjection that the last four grounds three of which complain ofmisdirection and one of non-direction by the Judge do not involvequestions of law and hence cannot be considered by this Court withoutthe prior leave of the Court or upon the certificate of the Judge who triedthe appellant granted under section 4 (b) of the Ordinance. The line ofdemarcation between questions of law and fact is a somewhat narrow oneand it is advisable that the principles on which this Court is to be guidedin matters such as this should be clearly stated at the earliest opportunityafter its establishment. Ordinance No. 23 of 1938 follows almost wordfor word the Imperial Criminal Appeal Act, 1907, and hence it is expedientthat our procedure in Ceylon should model itself on the decisions andpractice of the English Court of Criminal Appeal. In England leave toappeal is considered to be necessary unless the misdirection alleged isclearly misdirection as to the law. Where the misdirection consists of awrong direction as to the law in general which obtains in the class of casesto which the particular case belongs, or as to the law which is applicableto the special facts of the case, the complaint clearly involves a questionof law. A mistake of the Judge as to fact, or an omission to refer to somepoint in favour of the accused, is not, however, a wrong decision of a pointof law, but merely comes within the very wide words “ any other ground ”in section 4 (b). In this connection I would refer to the judgment ofChannell J. in R. v. Cohen and Bateman*. Applying the principles I have
11 Crim. App. Rep. at p. 238.* 23 Crim.. App. Rep. 32.
9 Crim. App. Rep. 189.5 2 Crim. App. Rep. 197.
» (1939) 1 All. Ey. Rep. 396.8 2 Crim. App. Rep. 207.
HOWARD C.J.—The King v. L. Seeder de Silva.
formulated, we are of opinion that grounds 3, 4 and 5 cannot be regardedas involving questions of law. The suggestion in ground 5 that thelearned Judge was wrong in directing the jury to regard the finding of theblood as real evidence is a complaint with regard to a misdirection as toa fact. Ground 4 is an alleged omission to refer to some point in favourof the appellant. Ground 3 is an alleged misstatement of the evidence."We are of opinion that ground 2 must he regarded as involving a questionof law inasmuch as the phraseology employed by the Judge if construedas contended for in the grounds of appeal had the effect of bringing to thenotice of the jury the fact that the appellant had made a confession.Applying therefore the strict letter of the law, grounds 3, 4 and 5 were notproperly before the Court. In view, however, of the uncertainty withregard to what is a question involving a point of law we have decided inmaking our decision on the appeal to take these grounds into consideration.
We do not consider that ground 3 bears the construction placed upon•it by Counsel for the appellant. Read with the rest of the context itcannot be said that the learned Judge told the jury that one person musthave done all of these acts. He is putting before the jury various hypo-theses. The words that follow the passage of which complaint is madeindicate that the person who locked the door, that is to say the appellant,may not have been the murderer.
Ground 4 raises a matter of small importance. It is true that withregard to the laying out of the body the learned Judge did not particularlyrefer to the "abnormality of the appellant. On the other hand a largepart of the summing-up is devoted to a consideration as to whether hewas of sound mind. It cannot be contended, therefore, that suchabnormality would not be present in the minds of the jury when theywere considering this and every aspect of the case.
With regard to ground 5 it might have been better if the learned Judgehad informed the jury that there was no evidence that the blood washuman blood. On the other hand they were warned that it might be anyother kind of blood and the matter was left for them to decide. We donot consider the appellant was prejudiced by this passage.
The point made with regard to ground 2 is that the reference to thestatement made by the appellant to the Police would inevitably lead thejury to think that the appellant had made a confession. The policemanto whom the statement had been made by his omission to relate in hisevidence what the appellant said to him might with equal force be said tohave brought to the notice of the jury that the appellant had made aconfession. Moreover, jurymen are not so well versed in legal procedureas to infer from the words used by the learned Judge that a confessionhad been made. Jurymen know that the law formulates various ruleswith regard to the admission of evidence. They are not, however, fullyacquainted with such rules and in these circumstances it does not followthat the phraseology of the Judge suggested to their minds a confession.
To sum up we are of opinion for the reasons I have stated that there isno real substance in grounds 2, 3, 4 and 5.
The main case for the appellant was based on the ground that as amatter of law there was no case to go to the jury. In connection withthis ground Mr. Perera. asked us to give consideration to an alternative
HOWARD C.J.—The King v. L. Seeder de Silva.
ground not mentioned in the notice of appeal, namely, that the learnedJudge omitted to explain to the jury the main principles to be followedin appreciating circumstantial evidence and, in particular, to point out tothem that before they could convict, they must be satisfied that theincriminating facts must be incompatible with the innocence of theaccused and incapable of explanation upon any other reasonable hypo-thesis than that of his guilt. This alternative ground of appeal isintimately connected with ground 1 and, in these circumstances, we havegiven it consideration although it is not raised in the notice of appeal.Generally speaking this Court will refuse to give effect to grounds notstated in the notice, but when the appellants is without means to procurelegal aid and has drawn his own notice, the Court will not as a rule confinehim to the grounds stated in his notice.
Counsel for the appellant contends that although no submission wasmade by Counsel for the accused at the close of the case for the prosecutionthe Judge should at this stage "have directed the jury to return a verdict of“ not guilty ”. It was argued that section 234 (1) of the CriminalProcedure Code imposes this duty on the Judge if he considers that thereis no evidence to go to the jury that the accused committed the offence.The English law is somewhat different. In Rex v. Abraham George , itwas held that at the close of the case for the prosecution a judge is not,in law, bound to withdraw the case from the jury if the point is notsubmitted to him. If prisoner elects to go on, the Court will look at thecase as a whole. It is, therefore, material at this stage to consider whetherthere was any evidence that the appellant committed the offence. Inthis connection the following facts have bJen established. The deceasedwas a young girl introduced Into his house Iby the appellant ostensibly asa cook. There was at that time another girl called Pody Nona who alsolived in the house and assisted in the cooking. About three weeks beforethe death of the deceased the girl Pody Nona left the appellant’s house.There was evidence that the appellant regarded the deceasd from anotheraspect than that of a servant. The witness Bastian Senanayake hastestified that the appellant informed him that the deceased had boltedbecause he held her breasts. There is evidence that the appellant wasjealous of the attentions that he thought the deceased was receiving fromother men. It was established that at the time when the deceased metwith her death she was living alone with the appellant in the latter’shouse. She was last seen alive by Charles, the carter, at the appellant’shouse at 7 a m. on the morning of June 23, the day before the murder.On this occasion the appellant told Charles apparently in the presence ofthe deceased that the latter was a woman of bad character and asked herto leave the house. He also asked Charles to advise the deceased andCharles told her to live well according to the instructions of her master.Charles on that day took the accused to Alutgama in his cart and broughthim back to his home about 5.30 p.m. He did not see the deceased onhis return. On the following day about 6.30 p.m. Charles was driving thecart about quarter mile from the appelant’s house when he met theappellant. The latter got into the cart and was driven to Alutgama PoliceStation. During the drive the appellant made no mention to Charles of
1 1 Cr. App. Rep. 168. ■
■* / »
HOWARD C.J.—The King v. L. Seeder de Silva.
thje death of the deceased. At the Police Station the appellant made astatement in consequence of which Sub-Inspector Ratnarajah went withthe appellant to his house. The appellant opened the door with a keywhich he had in his pocket. All the doors and windows were closed. Ina room the Inspector saw the body of the deceased covered with a clothlaid on a mat with the head resting on a pillow. She was dressed in awhite jacket and a white cloth which were soaked with blood. Her handswere placed on her chest clasped together with a bunch of orchids placedin her hand- A candle fixed in a bottle was burning at the time. A knifecovered with blood stains and identified as having previously been in thepossession of the appellant was on the pillow. The deceased’s hair wascropped short. The appellant told the Inspector that the hair cut fromthe woman’s head would be in the shed. The Inspector went to the shedand found the hair there. The appellant also took from the bed someclothes—exhibits P 2 and P 3—which were identified by the dhoby asbelonging to the appellant. These clothes had blood stains on them. Itwas not, however, established that it was human blood. The Inspectorthen took the appellant to the Police Station, searched him and found adiary in one of his pockets. Inside the diary was a Galle Gymkhana Clubsweep ticket the nom de plume being “ Lily ”, one of the names of thedeceased. The dairy also contained certain entries. The handwritingthat made these entries was net proved to be that of the appellant. Inthese circumstances we are of opinion that such entries cannot be takeninto consideration.
Mr. Perera maintains that there was no case to go to the jury inasmuchas there was no evidence of previously expressed intention or preparationor motive and such evidence as there was only indicated opportunity anddid not exclude opportunity by other persons. He also contended thatthere were no circumstances incriminating the appellant. The circum-stances in which the appellant found himself were not incompatible withhis innocence. Though there was suspicion, that suspicion did notamount to proof. We have given careful consideration to the submissionof Mr. Perera and have come to the conclusion that the Judge was rightin not withdrawing the case from the jury. It seems to us that thefollowing facts incriminate the appellant and definitely associate himwith the crime. The deceased was living alone in the house with theappellant and was last seen alive in his house at 7 a.m. on the previousday. The appellant left the house after locking the door and taking thekey with him about 6.15 p.m. on June 24, 1939, which according to themedical evidence was about the time that the deceased might have metwith her death. The appellant omitted to tell Charles, the driver of thecart, anything about the death of the deceased although on the day beforehe had made complaints to Charles about her conduct and asked the latterto give her advice as to her behaviour. The position in which the bodyof the deceased was found and its surroundings indicated the improbabilityof its having been so arranged by an intruder or stranger to the house.The hair of the deceased had been cropped and the appellant had pointedout to the Police where it would be found. The sweepstake ticket in thediary indicated that the appellant did not regard the deceased in the lightof a servant only and in this respect reinforces the evidence of Charles and
344HOWARD C.J.—The King v. L. Seeder de Silva.
Bastian. The interest thus evinced by the appellant in the deceasedindicates that he was actuated by feelings of jealousy which supply apossible motive for the crime. we are of opinion that in view of theevidence to which I have referred the learned Judge would not have beenjustified in withdrawing the case from the jury. In considering whetherthe jury were entitled to convict on such evidence, it must also be bornein mind that the appellant gave no evidence and offered no explanationof the various parts of the evidence that incriminated him. On theassumption that he was innocent of this crime he alone was in a positionto fell the jury the circumstances in which he found the body of thedeceased. He could, moreover, have offered his explanation of the bodybeing found lying in his house draped in white, with the hands claspedand holding orchids, a candle burning in a bottle and his blood-stainedknife on the pillow. He could also have explained how he knew that thehair of the deceased was in the shed. In this connection I would refer tothe following dictum of Lord EUenborpugh in the case of Rex. v. LordCochrane and others1—
“ No person accused of crime is bound to offer any explanation of hisconduct or of circumstances of suspicion which attach to him ; but,nevertheless if he refuses to do so where a strong prima facie case hasbeen made out, and when it is in his own power to offer evidence, ifsuch exist, in explanation of such suspicious circumstances which wouldshow them to be fallacious and explicable consistently with his inno-cence, it is a reasonable and justifiable conclusion that he refrains fromdoing so only from the conviction that the evidence so suppressed ornot adduced would operate adversely to his interest.”
This dictum applies in the present case. A strong prima facie case wasmade against the appellant on evidence which was sufficient to exclude thereasonable possibility of someone else having committed the crime.Without an explanation from the appellant the jury were justified incoming to the conclusion that he was guilty.
I now come to the final point made by Mr. Perera, namely, that thelearned Judge in his charge to the jury has omitted to explain the mainprinciples to be followed in appreciating circumstantial evidence. It istrue that, when the Judge deals with the evidence generally, he has notexplained fully those principles. On the other hand the charge has to beconsidered as a whole. If it is found that the jury have been warned injudging each circumstance that incriminates the appellant to look for aninnocent as well as a guilty explanation, the charge cannot be said to beunfair or prejudicial to the defence. Perusal of the charge indicates thatthe passages with regard to the arrangement of the body, the lighting ofthe candle, the closing of the door and the supplying of information to thePolice without a word to anyone invite the jury to find an innocent aswell as a guilty explanation of such circumstances. The charge, so itseems to us, recognized that there might be an innocent interpretation inregard to those circumstances that incriminated the appellant. Even
1 Qumey's Rep. 479.
HOWARD C.J.—The King v. Bellana Vitanage Eddin.
if the charge failed to explain as it should have done the principle to befollowed by the jury in dealing with circumstantial evidence, we are ofopinion that on a right direction the jury would have come to the same
The appeal is therefore dismissed.
THE KING v. L. SEEDER DE SILVA