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Present: Wood Renton C.J.THE KING v. SENANAYAKE.251—D. G. (Grim.) Kurunegala, 3.859.
Joinder of charges—Rioting—House-breaking—Entering the boutiques cf three
men—Evidence of subsequent conduct of accused—Criminal Procedure
Code, ss. 179, 180—Evidence Ordinance, s. 8.
Accused was charged with having committed house-breaking onJune 4, 1915, daring the riots by entering into the boutiques ofthree men, with the intention, in each case, of committing theft.
Held, that the joinder of three distinct charges of offences committedagainst three different persons was not wrong.
" It is always open .to the Court, on the application of an . accusedperson against whom that section is being applied, to order that thetrial should be separate, and any possible hardship may be obviatedin that way.”
In this case the District Judge admitted the evidence of certainwitnesses, who said that the accused was at the head of a mob twodays after the house-breaking.
Held, that, in the circumstances of this case, the evidence was notinadmissible.
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The Ktog v.Senanagthe
rJ1HE facts appear from the judgment.
H. J. C Pereira (with him J. W. de Silva), for accused,appellant.,
Chenier, G.C., for the Crown.
Cur, adv. vult.
November 3, 1917. Wood Renton C.J.—
This appeal was argued before me mainly on certain questionsof law, which are of considerable interest and importance. Theaccused, Isaac Peter Senanayake, was charged with the commissionof three distinct offences in the early days of the riots, namely, onJune 4, 1915, at Dambadeniya, in the division of Dandagamuwa.The case for the prosecution was that on that day he had committedhouse-breaking by entering successively into the boutiques of threeMoormen, Slema Lebbe Ibrahim Lebbe, Segu Lebbe Shena Moha-madu Ally, and Segu Lebbe Sena Mohamadu Lebbe, with theintention, in each case, of committing theft. The learned DistrictJudge, after trial, convicted him on each count of the indictment.But in view of the facts that the accused had been in hiding for aperiod of about eighteen months after the offences were committedand that the exciting period, in the course of which the house-breakings had taken place, had now happily passed away, he imposeda sentence, of only twelve months’ rigorous imprisonment in respectof each conviction. The sentences arc concurrent. The accused’scounsel admitted, in effect, that he could not ask me to differ fromthe findings of the learned District Judge upon the evidence. Themain point that seems to have been urged in the Court below was thatit was stereotyped. But the evidence in cases of this kind is stereo-typed only because the operations of the malefactors are stereotypedalso. The sentences passed, are by no means severe. I come now toconsider the points of law that were argued before me in support ofthe appeal. It was contended, in the first place, that the joinder ofthree distinct charges of offences committed against three differentpersons could not be justified under section 179 (1) of the CriminalProcedure Code; in the second place, that this joinder was equallyincapable of being upheld under section 180 (1) of the Code, whichprovides that if in one series of acts so connected together as toform the same transaction more offences than one are committedby the same person, he may be charged with and tried at one trialfor every such offence; and, in the* last place, that in any event,the learned District Judge had improperly admitted evidence pre-judicial to the character of the accused. I propose to deal with .each of these objections in turn. Section 179 (1) of the CriminalProcedure Code is identical in its language with section 452 ofthe Indian Code of Criminal Procedure, 1872.1 It was held by
»Act X. of 3872, 88. 452 and 453.
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Straight J. and Tyrrell J. in Empress of India v. Murari1 thatthe combination oi three offences of the same kind for the purposeof one trial can only be made where they have been committed inrespect of one and the same person, and not against different pro-secutors. This case w?s decided under the Code of 1872,3 and itwould constitute an authority of some weight if it had been followedin subsequent decisions. But in 1882 Field J. and Norris J.,in Mann Miya v. Empress of India,* expressly dissented from it,and held that the words “ offences of the same kind *’ in the sectionabove cited were not limited to offences against'the same person.The question came up again in 1884 before a Full Bench of theHigh Court of Allahabad in Queen Empress v. Juala Prasad.4 Inthat case a postmaster was accused of having, on three differentoccasions within a year, dishonestly misappropriated moneys paidto him by different persons for money orders. It was held that theoffences were '* offences of the same kind ” within the meaning ofsction 284 of the Criminal Procedure Code, 1882,5 and that theaccused was liable to be charged and tried at one trial for all threeoffences, although the persons whose money had been dishonestlymisappropriated were in each case different. It appears to me thatthe later Indian authorities ought to be followed in the constructionof section 179 (1) of our own Criminal Procedure Code. It is alwaysopen to the Courts, on the application of an accused person againstwhom, that section is being applied, to order that the trials should beseparate, and any possible hardship may be obviated in that way.To insert in section .179 (1) the words *-* against the same person ”when the Legislature has omitted them would be a stretch of judicialinterpretation closely approximating to actual legislation itself.The first objection in support of the appeal fails. If the witnessesfor the prosecution are speaking the truth, the accused was a ring-leader of a large mob which, on the day in question, appeared inDambedeniya; he incited the mob to loot the Moorish boutiques inthe villages, and they proceeded to do so successively in pursuanceof his advice. We are in these circumstances in presence of a seriesof acts constituting one and the same transaction.
The last point urged by counsel for the accused is the mostimportant of all. The leraned District Judge admitted the evi-dence of certain Sinhalese witnesses, who said that the accused wasat the head of a mob two days after the house-breakings at Damba-deniya, namely, on June 6. It was contended that this evidencewas prejudicial to the character of the accused, and ought to havebeen excluded. It does not appear to me that' the evidence justmentioned would be admissible under section 8 of the EvidenceOrdinance, which makes the conduct of accused persons admissible
L -B- 4 AU. 147.8 (1882) 7. L. R. 9 Cal. 371.
: *Act X. of 1872, 88, 452 and 453.* (1884) 7. L. R. 7 All. 174.
6 Act of 1882.
The King v.Senanayake
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The King v.,Settanayalce
in certain circumstances. It could scarcely be alleged that theconduct of the accused in acting as the ringleader of a mob on June6 had either influenced or been influenced by the main fact in issue,namely, his conduct on June 4. But section 8 of the EvidenceOrdinance does not exhaust the possibilities of the situation. Theconduct of the accused on June 6 could be proved by the prosecu-tion if it was part of the same transaction as the events of June 4.It could also be proved for the purpose of rebutting any defencewhich he had put in issue in the case. Now, here again, the evi-dence of the witnesses for the prosecution, if true, shows that theaccused and the mob, of which he was the head, were operatingsteadily and systematically in the looting of Moorish boutiques forseveral days. Their proceedings may fairly be regarded as oneand the same transaction. Moreover, the case for the accused wasthat he had taken no part in the looting at all, but had been livingquietly on his estate or on the property of some of his friends whenthe looting was going on. To each of the eye witnesses for the pro-secution questions were put throwing doubt on their identificationof the accused, and indicating that they had named him merelybecause some of his relatives were supposed to have had a sharein the riots. It appears to me that that defence brings the casedirectly, within the historical language used by Lord Herschell inthe case of Mdkin v. Attorney-General of New South Wales.1 I pro-pose to quote the passage in its entirety, for it lays down the generalrule which is so easily stated, but is so difficult to apply correctly toparticular sets of facts:It is undoubtedly not competent for the
prosecution to adduce evidence tending to show that the accusedhas been guilty of criminal acts other than those covered by theindictment, for the purpose of leading to the conclusion that theaccused is a person likely from his criminal conduct or character tohave committed the offence for which he is being tried. On theother hand, the mere fact that the evidence adduced tends to showthe commission of other crimes does not render it inadmissible ifit be relevant to an issue before the jury, and it may be so relevantif it bears upon the question whether the acts alleged to constitutethe crime charged in the indictment were designed or accidental, orto rebut a defence which would otherwise be open to the accused.”The meaning of that possage has been considered in two recentEnglish cases. In King v. Rodney 2 the facts were shortly these.The accused was charged with having in the night-time broken intoand entered a dwelling-house with the intention of committing rape.The prosecutrix gave affirmative evidence as to his conduct. Theaccused admitted that he had, in fact, been in. the house on thenight in question, but said that he had gone there at the invitation,or at least with the consent of the woman on whom the attemptedrape was alleged to have been committed; that he offered her no1 (1894) A. 0. 57 and?8 (1913$ 3 K. B. 468.
violence; and that he was simply “ courting” her, presumably witha view to marrying her. The Crown adduced evidence showingthat the accused immediately aiter he had left this woman’s housewent straight to the house of another woman, with whom he hadformerly been on terms of intimacy, gained access to it by theunusual method of going down the chimney, and gratified his passionupon her. The Judge who tried that case, Lord Coleridge, held thatthe evidence was admissible for the purpose of showing the stateof the accused’s mind and body on the night in question. He putthe point to the jury in the following language:‘ ‘ Then the accused
goes away, and the next thing that is heard is that hardly a stone’sthrow from the farm lives a woman with whom he has already hadimmoral intercourse. The suggestion of the prosecution is that hewas raging with lust,, and that, being foiled as regards the prose-cutrix, he immediately went to gratify his passion upon the womanwho he knew would not be unwilling to yield.”
The jury convicted the accused* and he appealed to the Court ofCriminal Appeal. The Court held that the evidence ought not tohave been admitted, inasmuch as no question of the intention ofthe accused was involved in his defence. His case was, not that hehad attempted to have intercourse with the prosecutrix with herconsent, but that he had made no such attempt, and had visited hersimply for the purpose of seeking her hand in marriage in an ordinaryand honourable way. The conviction and sentence were quashed,and the accused was acquitted. How far this decision is consistentwith that of the House of Lords in King v. Ball1 it is unnecessary inthe present case to inquire. In any event it is obvious that theevidence in dispute in King v. Rodney 2 was of a somewhat; remotecharacter, and could only have thrown an uncertain light on themental condition of the accused at the time of the commission ofthe offence. The other case to which I have referred is King v. Ball.1'It was a prosecution under the Incest Act, 1908.® The accusedand his sister had admittedly lived together under the name ofMr. and Mrs. Ball. They had occupied the same room and thesame bed, and there are circumstances in the case, apart from theevidence with which I am about to deal, that went to show that'their relations were those of husband and wife, and not of brotherand sister. But, on the other hand, as one of the Judges in thecase pointed out, there might be circumstances from which the jurywould decline to draw an inference that incest had been committedfrom the mere fact that a brother and sister were occuping thesame room or even the same couch. “ In the administration ofthis Act,” said Lord Alverstone C.J., ” there is an additional reasonwhich enforces the argument (at the Bar), namely, in the case ofpoor people in crowded dwellings; it is sometimes impossible fcir;
1 (1911) A. C. 41.* (1913) 3 K. B. 468.
8 Edw. 7, o. 43.
The King e.Senanayake,
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The King v.Senanoyake
them to avoid sleeping together, and it would be wrong to assumein some cases that there must have been incestuous intercoursebecause persons of different sexe6 were in the same bed.”
The prosecution proposed to negative this possible defence onthe part of the accused by extrinsic proof of the existence of guiltypassion between his sister and himself. For that purpose evidencewas tendered showing that while they had been living together thesister had become pregnant and had given birth to a child, and thatshe registered the birth, describing herself as the mother and themale defendant as the father. It is obvious that this evidenceconstituted proof of the commission by the accused of an offenceother than that with which he was charged on the indictment.Scrutton J., who tried the case, admitted the evidence. Theaccused was convicted, he appealed to the Court of Criminal Appeal,the conviction and sentence were set aside, and the Crown thenappealed to the House of Lords. After elaborate argument, theHouse of Lords reversed the decision of the Court of Criminal Appeal,and held that the. evidence was admissible for the purpose of showingwhat the real relations between the accused and his sister were, andof negativing any defence on his part that those relations were inno-cent. It appears to me that the evidence tendered in the presentcase comes well within the ratio decidendi stated by Lord Herschellin Mdkin v. Attorney-General of New South Wales,1 and applied, withdifferent results, according to the circumstances, in the later casesabove mentioned. The accused’s defence in the present case was adenial that he had taken any part in the rioting whatever. It was,in my opinion, open to the prosecution to shpw that he had been atthe head of a band of rioters, not only on June 4, but, by way of corro-borating tfie witnesses who deposed to what had happened on'June 4and breaking down his defence, on June 6 also. In the las,t'place,even , if I had thought that the evidence here in question was inad-missible, I should have felt bound, in the circumstances of thepresent case, to give effect to the provisions of section.'167 of theEvidence Ordinance, which enacts that ” the. ipiprop^f admissionor rejection of evidence shall not be a ground by itself .;fof, a new trialor reversal of any decision in any case, if it. shall appear to ttidCourt before whom such objection is raised that, independently ofthe evidence objected to and admitted, there was sufficient evidenceto justify the decision.” The ordinary rule no doubt is that wherean appellate tribunal finds that evidence against the character ofan accused person has been improperly admitted, the proceedingsshould not be allowed to stand. The reason for that rule is obvious.The Judges who hear the appeal are not in a position to say whateflm&the evidence illegally admitted may have had on the mind ofthe Court of trial. But we have no right to strike section <167 outof the statute altogether. In the present case it was open to the1 (1894) A. C. 57 and 65.
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prosecution to prove, and the fact was proved, that on the morningof June 4 the accused was the ringleader of a riotous gang engagedat his bidding in looting Moorish boutiques. The evidence provedagainst him with regard to June 6 carried the case no further, andcould not have produoed such an effect on the mind of the Court asto lead to a wrong conclusion. I have thought it right to deal withthis case at length, in view of the importance of the points involvedin it, and the frequency with which, in one form or. another, theycome up before the Courts of law in this Colony.
The appeal is dismissed.
Wood. ■>’ •Renton C.J.
The King v.Sevanayake
THE KING v. SENANAYAKE