The Queen v. Vincent Fernando
[In the Coubt of Criminal Appeal]
Present: Basnayaka, C.J. (President), Herat, J.,
and Abeyesundere, J.
THE QUEEN v. S. VINCENT FERNANDO and 2 othersAppeals Nos. 4, 5 and 6 of 1962, with Applications Nos. 4, 5 and 6
8. C. 78—M. C. Negombo, 2,686Trial before Supreme Court—Inspection of scene of offence by jury—Procedure—
Illegality of recording evidence at the scene—Criminal Procedure Code, ss. 153,
23S—Courts Ordinance, ss. 52, 53, 85.
In a trial before the Supreme Court the recording of evidence at the placewhere the offence was committed is illegal and not warranted by the provisionsof section 238 of the Criminal Procedure Code. Nor is it proper for the juryto be taken from place to place during the inspection.
Evidence Ordinance—Section 32—Statement of deceased person as to the cause of his
death—Weight to be attached to it—Misdirection.
It would be a misdirection to tell the jury that the statement of a deceasedperson as to the cause of bis death whioh is admissible under section 32 of theEvidence Ordinance as a relevant fact is diminished in weight by the absenoeof cross-examination or that it is an inferior kind of evidence wbiob must notbe acted upon unless corroborated.
Common intention—Meaning of term—Penal Code, ss. 30, 31, 32.
By section 32 of the Penal Code :—
“ When a oriminal act is done by several persons in furtherance of thecommon intention of all, each of such persons is liable for that act in thesame manner as if it were done by him alone.”
Held, that, to be liable under section 32, a mental sharing of the commonintention is not sufficient; the sharing must be evidenced by a oriminal act orillegal omission manifesting the state of mind.
Where the trial Judge, in the course of his summing-up, said :—
“ If there is a common intention, even if one of them does not do anyact, he would still be liable as though he too committed the same act.The reason is the mere presence of those who shared a common intentiongives enoouragement and support and a sense of protection and securityto the person actually committing the act.”
Held, that the direction was wrong in law.
Appeal against three convictions in a trial before the SupremeCourt.
E. Ghitty, Q.G., with D. 8. D. Senanayake and D. J. Walpola(assigned), for Accused-Appellants.
8. S. Wijesinha, Crown Counsel, for Attorney-General.
Cur, adv. wM,
2B. 13116—1,856 (10/03)
BASNAYAE3B, 0. J.>—Tk» Qmm v. Vimoant Fenumdfo „
May 13, 1963. Basjsaxaico, 0J.—
The appellants Vincent Fernando, Leelaratne Fernando and GodwinFernando were indicted with jointly committing the murder of DavidFernando an let November, 1960.
The case for the prosecution rests on the evidence of Mary Margaretand the statements of the deceased. All three accused gave evidenceon their behalf and denied the charge. The 1st accused said he was atPuttalam and called a witness in support. The 2nd accused said he wasat his father’s house at Pottukulama and the 3rd accused said he wasat his aunt’s house at 91 Weboda Road.
The story for the prosecution is that on 18th September Thobias thefather of Godwin Fernando the 3rd accused assaulted the husband ofMary Margaret. Od that occasion the deceased helped to take the injuredman to the Police Station and the hospital. The 1st accused, the 3rdaccused and his father were warned by the headman, and on a complaintmade by the 1st accused’s wife the deceased was also warned by him.Thisincident estranged the parties. On 1st November, the day of the murder,the deceased and his household had their night meal at about 8.30 p.m.After dinner the deceased got out of the front entrance of his house, butsoon returned saying that someone was going to the rear of the house witha gun. He picked up a pingo stick that was at hand and went up tothe entrance followed by the witness Mary Margaret and his wife. Atthat moment a shot was fired in front of them. The deceased pushedthe two women inside and was in the act of closing the front door whenanother shot was fired. The pellets from that shot struck the door andalso injured Mary Margaret. Thereafter Mary Margaret heard Leela-ratne the second accused say, “ We have come to eat you todayNext she heard a sound which she described as “ pattas ” and when shelooked in that direction she saw the window being forced open. Atthat time the deceased was bolting the front door. There were twolamps in the room—one on the sewing machine and the other on thedining table. The 1st accused Vincent Fernando inserted the barrelof a gun through the bars of the window that had been forced open andfired. The shot struck the deceased. The inmates of the house raisedcries and the accused disappeared. The deceased was removed to thehospital almost immediately. There his statement was recorded byan unofficial Magistrate. It reads as follows :—
BASNAYAKE, C. J.—The Queen v. Vincent Fernando
The translation of the above statement reads—
“ Q. : How did you come by your injury 1
A. : Vincent shot me.
Q : Where ?
A: Inside the house, broke open the window and shot me with agun. I got inside the house and closed the door. The windowwas broken open and the shot was fired. At that time therewere five persons present. I identified three of these persons.They are Godwin, Leelaratne and Vincent who shot.”
The deceased appears to have stated to the doctor who attended on himand the Inspector of Police who questioned him that the 1st accusedshot him. To the Inspector he conveyed the additional informationthat he was shot through the window and that the 2nd and 3rd accusedwere with him.
Of the grounds urged on behalf of the appellants only the followingneed be considered—
The procedure adopted by the learned Commissioner at the view
by the jury of the place at which the offence was committed iswrong in law.
The learned Commissioner misdirected the jury on—
how they should treat the statement of a deceased person
as to cause of death, and
the law as to the liability created by section 32 of the
On 27th December 1961, the second day of trial, the learned Com-missioner stated—
“ I think it is desirable to visit the scene for the jury to view the scene.
How far is it from here ? ”
The Crown Counsel informed him that it was about 5 or 6 miles. Thelearned Commissioner then decided that the view should take place at9 o’clock in the morning of the following day. The trial proceeded thatday and the prosecution closed its case. The 1st accused gave evidenceand while the 2nd accused was being examined-in-chief the Courtadjourned for the day. At 9.30 a.m. the next day the Commissioner,counsel, the jury, the accused, and the Court staff left for the place wherethe offence charged was alleged to have been committed. At a placedescribed as “ the scene ” the learned Commissioner ex mero moturecalled the prosecution witness Mary Margaret and examined herhimself and thereafter the defence counsel was permitted to question her.The Commissioner asked fifteen questions from her while defending counselasked six questions. The following minute in the transcript states whathappened thereafter
“ 10.05 a.m. Court leaves the scene to view the witness’ house and
arrives in front of an abandoned house at 10.10 a.m.”
BASjSTAYAKB,. O.J.—%‘be Qxtem t>. Vioiamt Fernando
Having reached that house the learned Commissioner recalled andexamined Mary Margaret once more. The transcript reads—
“ Court: 1436. Q ■' This Is your house ?
Court returns to the scene.
Court calls :
GAJASINQEAGE PEDURU SILVA : Sworn.”The witness is the village headman who gave evidence for the prosecution.After this witness had been examined the Commissioner proceeded toanother place. The transcript reads—
“ Court: We will go to the place where the accused were arrived(sic).
Court leaves the scene and arrives on the Negombo-Katana roadnear the tavern (10.25 a.m.) ”
Here the Commissioner questioned the Inspector of Police who hadgiven evidence for the prosecution and also the village headman for thesecond time. The Commissioner then moved to another place. Thetranscript reads—
** Court: We will go to Weboda Road.
Court goes to Weboda Road and looks at a house said to be thehouse of the 3rd accused’s aunt.
(10.45 a.m. Court returns to court-house) ”.
Thereafter the 2nd accused whose evidence was interrupted by the viewof the scene was cross-examinea by the Crown.
The learned Commissioner appears to have adopted a course for whichsection 238 offers no authority. That section reads—
" (1) Whenever the Judge thinks that the jury should view the placein which the offence charged is alleged to have been committed orany other place in which any transaction material to the trial is allegedto have occurred the Judge shall make an order to that effect; andthe jury shall he conducted in a body under the care of an officer of thecourt to such place which shall be shown to them by a person appointedby the Judge.
Such officer shall not except with the permission of the Judgesuffer any other person to speak to or hold any communication withany member of the jury; and unless the court otherwise directs theyshall when the view ie finished be immediately conducted back intocourt”.
The transcript does not show that the Judge made the order required bysubsection (1). The order that the subsection requires the Judge tomake is not a mere minute or record such as the one reproduced above,
BASNAYAKE, C.J.—The Queen v. Vincent Fernando
but a formal order stating the reason or reasons why the Judge thinksthat the jury should view the place in which the offence charged is allegedto have been committed or any other place in which any transactionmaterial to the trial is alleged to have occurred. The transcript does notalso show that the jury were conducted to the place under the care of anofficer of the Court as required by subsection (2), nor is there anythingto indicate that the ‘ ‘ scene ’ ’ was shown to the jury by a person appointedby the Judge. These are imperative requirements of the section whichmust be strictly observed (The King v. Seneviraine1). It would appearfrom section 238 that it contemplates that the jury should proceedunder the care of an officer of the Court to the place the Judge thinksthey should view and be shown it by the person appointed for the purposeand be brought back thereafter. The words “ the jury shall be conductedin a body under the care of an officer of the Court to such place which shallbe shown to them by a person appointed by the Judge ’’indicate that thesection does not provide for anything more. The section does notprovide for the Court visiting any place and therefore any proceedingsthat should be taken in Court should not be taken at the place whichis being viewed by the jury merely because the presiding Judge happensto be present. The view by the jury is not a judicial act or judicialproceeding. The presence of the Judge does not alter its character.He has no power to exercise at the scene any of the functions of a Judgepresiding over a trial by jury. Nor does the fact that the jury, Judge,counsel, witnesses and Court staff are present transform the placeviewed by the jury into a Court. Criminal sessions of the Supreme Courtare held in a place appointed for the purpose and it is not open to aJudge to exercise his judicial functions at any other place. In the caseof the subordinate Courts also it is so provided. Section 52 of the CourtsOrdinance provides that the District Courts, Courts of Requests aridMagistrates’ Courts shall be held at such convenient place or places asmay from time to time be appointed by the Minister of Justice. Thereis an exception in the case of Magistrates who are empowered to holdCourt at any convenient spot within the limits of their division (s. 53Courts Ordinance, and s. 153 Criminal Procedure Code). Section 85of the Courts Ordinance provides that the sittings of every Court shall bepublic and that all persons may freely attend the same. A place whichis viewed by the jury is not a place which all persons may freely attend.Quite apart from other objections the holding of the Court at a placewhich all persons cannot freely attend would be a violation of section 85of the Courts Ordinance. The recording of evidence at the scene is notcontemplated nor warranted by the section. What is not warranted bya positive enactment is not legal (Smurthwaite and others v. Eannay andothers a). In the instant case apart from the illegality of taking evidenceat the scene the Commissioner kept on moving from place to placetransforming the Supreme Court into a peripatetic Court. The sectiondoes not appear to provide for the jury to be taken from place to placeas was done in the instant case. The learned Commissioner was therefore
1 (1936) 38 N. L. R. 208 at 223.a (1891) A. O. 494 at 501.
2°R 13116 (10/63)
BABSTAYAKE, C.J.—SPktQMmv, Vinamt Fernando
wrong in taking the jury from place to place, some of them not beingplaces which under section £38 a jury may view, and examining and re-exaaruning the witnesses. The course adopted by the learned Com-missioner in holding Court at the -various places he visited is contrary
to law and is capable of o&using grave prejudice to an accused person."What happened in the instant ease may be described in the words of thePrivy Council in The King v. Seneviratne (supra) as “ a combination ofa view and a further hearing with the introduction of some featurespermitted by neither procedure "What occurred here may also bedescribed in the terms of the same judgment that “there are featuresin the proceedings of 28th December 1961 which were irregular inthemselves and unnecessary for the administration of justice.”Proceedings so conducted tend in the words of Ibrahim’s case “ to divertthe due and orderly administration of the law into a new course whichmay be drawn into an evil precedent in future.”
The second ground of appeal is that there was misdirection as to theuse of the statement made by the deceased in regard to the cause ofhis death. Section 32 of the Evidence Ordinance declares that statementsof a person who is dead are themselves relevant facts when they aremade by him as to the cause of his death or as to any of the circumstancesof the transaction which resulted in his death in cases in which thecause of that person’s death comes into question. In the instant casethe prosecution proved the statements made by the deceased to theunofficial Magistrate as to the cause of his death. The Evidence Ordinancedeclares such statements themselves to be relevant facts. The jury arefree to take such statements into account in arriving at the verdictlike any other evidence placed before them. Like any other relevantfact they are entitled to weigh it and act on it or not when decidingwhich view of the facts is true. The learned Commissioner apparentlyin view of the decision of this Court in The King v. Asirvadan Nadar 1directed the jury thus :
“ 1STow a dying deposition is certainly open to a certain amountof criticism because it has not been subjected to cross-examination.Really it amounts to the admission of hearsay evidence but section32 of the Evidence Ordinance allows such evidence to be led.”
After referring to section 32 he proceeded—
” You will realise that in this case the cause of David Eernando’sdeath is in question and therefore under this section his statement,both to Dr. (Mrs.) Hernando and to Inspector Tennekone, and to theunofficial Magistrate, the latter having been made on oath—yousee the two statements made to Dr. (Mrs.) Hernando and InspectorTennekone were not made on oath or affirmation but that made toMr. de Soysa was, in fact, made after he was sworn. Of course whenconsidering the weight to be attached to these statements, you wouldappreciate that the statements of the deceased have not been testedby cross-examination.
(I960) 61 N. L. R. *22.
BASNAYAKE, C.J.—The Queen v. Vincent Fernando
The power of cross-examination is a power as essential to the elicit-ing of truth as the obligation of an oath can be but you should takethe other facts and surrounding circumstances proved in evidenceand if you find support in those statements or in the other evidence as tothe truth or otherwise of the deposition you can act on it.
Now, in this case, there is the evidence of that witness, Mary Margaret,which goes to support the statements, the three statements that have beenmade by David Fernando.
There is no rule of law under which evidence which is admissibleunder this section may not be acted upon unless it is corroborated byindependent testimony. There is no such rule, there is no rule that itmust be corroborated by independent testimony, but if you can findsupport, then of course you are entitled to fortify yourselves with thatsupport that has been derived from that.
It is my duty to draw your attention to the inherent weakness of adeposition made by a person who is not before you and who cannot becross-examined, but that is admissible evidence; it is relevant evidence ;only the weight to be attached to it is always affected because it hasnot been tested by cross-examination. It is not possible to test it bycross-examination because the man has died. If he had not died, theywould not rely on these statements and the charge would not be one ofmurder; it may be one of attempted murder and he would be cross-examined on these and it may be led in evidence to corroborate hisevidence that is given before you.”
The directions given above find no support in the provisions of theEvidence Ordinance. The statement of a deceased person is not aninferior kind of evidence which must not be acted on unless corroborated.Like any other relevant fact it must be considered by the jury havingdue regard to the circumstances in which the statement was made,the character and standing of the person making it. It is wrong to givethe statement of a deceased person an inferior status, as it is also equallywrong to give it an added sanctity. The prosecution was seeking toprove the fact that the 1st, 2nd and 3rd accused committed criminalacts in furtherance of their common intention to kill the deceased. Insupport of that fact the Crown placed before the jury evidence of thestatements of the deceased and of Mary Margaret. It was open to thejury to return a verdict against the accused if they believed the statementof the deceased or the evidence of Mary Margaret or both. That beingthe case the question of corroboration of the deceased’s statement didnot arise. In the circumstances there was no need to over-emphasisethe absence of cross-examination. The weight to be attached to sucha statement would vary with the circumstances of each case and is amatter for the jury, and the absence of cross-examination does notdiminish it even as the mere fact that a witness is cross-examined doesnot increase it.
BASNAYAKZE, C.J.—Tit* Qwsn a. Ymcmi P&nan&o
The third ground is that the jury were misdirected as to the criminalliability created by section 32 of the Penal Code. That section provides—
“ When a criminal act is done by several persons in furtheranceof the common intention of all, each of such persons is liable for thatact in the same manner as if it were done by him alone. ”
A person who does a criminal act by himself is liable for that act if itoffends any provision of the penal law. The above section does not dealwith the liability of a person for the criminal act he himself does butwith his liability for the criminal acts of others. What are the pre-requisites of such liability ? Several persons must have a commonintention to do a criminal act, they must all do that act in furtheranceof the common intention of all. In such a case each person becomesliable for that act in the same manner as if it were done by him alone.By virtue of the definition of “ act51 in section 31 of the Penal Code theapplication of the section also extends to a series of criminal acts doneby several persons in furtherance of the common intention of all. Thereare more cases which fall within the extended application than withinthe unextended. Now where a series of criminal acts is done by severalpersons, each act would be done either jointly or severally. Butwhether the criminal acts in the series of criminal acts are done jointlyor severally if each criminal act is done in furtherance of the commonintention of all each of the persons sharing the common intention anddoing any act in the series of criminal acts is not only liable for his ownact but is also liable for the acts of the others in the same manner asif it were done by him alone. For instance, if a man is done to deathby several blows struck by several persons in furtherance of the commonintention of all, each person is liable not only for the blow dealt by himbut he is also liable for each of the blows dealt by the others in the samemanner as if all the blows were dealt by him alone, and where deathresults from the blow of one of them and it appears that the commonintention of all was to cause death, each of those who did criminalacts in furtherance of the common intention of ah is liable for the attof the person whose blow resulted in the death of the deceased. It isnot necessary to prove who struck the fatal blow. A person who merelyshares the criminal intention, or takes a fiendish delight in what ishappening but does no criminal act in furtherance of the common inten-tion of all is not liable for the acts of the others. To be liable undersection 32 a mental sharing of the common intention is not sufficient,the sharing must be evidenced by a criminal act. The Code does notmake punishable a mental state however wicked it may be unlessit is accompanied by a criminal act which manifests the state of mind.In the Penal Code words which refer to acts done extend also to illegalomissions (s. 30). What has been stated above in regard to criminalacts therefore apply to illegal omissions as well. The statement ofLord Sumner in the caee of Barendra Kumar Gosh v. Zhnperor *, “ They
1 (1925) A. I. B, Privy Covnoil p, 1.
BASNAYAKE, C. J.—The Queen v. Vincent Fernando
also serve who only stand and wait ” has to be regarded as applyingnot to a bystander who merely shares mentally the criminal intentionof the others bnt to a person whose act of standing and waiting is itselfa criminal act in a series of criminal acts done in furtherance of thecommon intention of all. The learned Commissioner’s direction on. this aspect of the case is as follows
Now, the evidence is that the 1st accused fired the shot.Now, even if we accept that, why are the other two being chargedfor the act of the 1st accused '(’ This is what is known as vicariouscriminal responsibility. Learned Crown Counsel referred to section32 of the Penal Code, where a criminal act is done by several persons,that is more than one, in furtherance of the common intention ofall, each of such persons is liable for that act in the same manneras if it were done by him alone. When a criminal act is done by severalpersons in furtherance of the common murderous intention of all, eachof such persons is liable for that act in the same manner as if it weredone by him alone.
The essence of that liability is to be found in the existence of acommon intention animating the accused leading to the doing of acriminal act in furtherance of such common intention, in this case,in furtherance of a common murderous intention. If they acted withone mind or had a common design, namely to kill Jayaweera DavidFernando, then they had what is known as the common murderousintention. The well-known words of Poet Milton, namely, ‘Theyalso serve who only stand and wait ’, would be applicable in caseswhere the charge is based on common intention acting in furtheranceof a common intention. If there is a common intention, even if oneof them does not do any act, he would still be liable as though he too com-mitted the same act. The reason is the mere presence of those who shareda common intention gives encouragement and support and a sense ofprotection and security to the person actually committing the act.”
The direction contained in the words underlined is wrong in law.The wrong direction does not affect the 1st accused as the evidence isthat it was he who fired the fatal shot. But it is not possible to sayto what extent the verdict of the jury against the 2nd and 3rd accusedwas influenced by the wrong direction. The evidence is that both the2nd and 3rd accused were present and that the former said before theshooting, “ We have come to eat you today ”. There is no evidencethat the latter said or did anything. It is not possible to say whetherthe jury believed the evidence of the 2nd accused’s threat as on thelearned Commissioner’s direction it was open to them to return a verdictagainst both whether they believed that evidence or not. In the caseof the 1st accused who shot the deceased we are satisfied that despitethe fact that we uphold the grounds raised in appeal no substantialmiscarriage of justice has actually occurred. The position is differentin regard to the other two. We are unable to say that the jury did notact under the wrong direction of law in regard to their liability.
L._ B. vb SILVA, J.—Christina v. Ostftin Fernando
We therefore dismiss the appeal of the 1st accused and. quash theconviction of the 2nd and 3rd accused and direct that a judgment ofacquittal be entered in respect of them.
Appeal of 1st accused dismissed.
Convictions of 2nd and 3rd accused quashed.
THE QUEEN v. S. VINCENT FERNANDO and 2 others