102-NLR-NLR-V-11-LOKU-NONA-and-two-others-v.THE-KING.pdf
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In the Privy Council.
On Appeal from the Supreme Court of Ceylon(Criminal Jurisdiction).
Present : The Lord Chancellor, .the Earl of Halsbury, LordAtkinson, and Sir Arthur Wilson.
LOKU NONA and two others v. THE KING.
P. C., Negombo, 8,151.
Appeal to the Privy Council—Conviction for murder—Grounds of inter-ference in criminal cases.
The Judicial Committee will not advise His Majesty to interferewith the conviction in a criminal case, unless it is shown that, by adisregard of the forms of legal process, or by some violation of theprinciples of natural justice, or otherwise, substantial and graveinjustice has been done.
In re Dillet1 followed.
November 18, 1908.
T
HIS was an appeal by special leave (21 N. L B. 116) from amajority verdict and sentence pronounced by Mr. Justice Wood
Benton of the Supreme Court of Ceylon on November 22, 1907, andfrom a judgment on points of law affirming that sentence deliveredby the Supreme Court of Ceylon on December 11, 1907 (21 N.L.B. if).
Sir Robert Finlay, K.C., Mr. Frederick H. M. Corbet, and Mr.Edward W. Perera appeared for the appellants; Mr. Horace Avory,K.C., and Mr. Henry O'Hagan for the respondent..
The first appellant, Loku Nona, is the wife of Miguel Mudalali,a landed proprietor; the second, Punchi Nona, is her unmarriedsister, twenty-three years of age, who lived with them; and thei (1887) L. B. 12 App. Cos. 459.
1908.
November 18.
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M8.
November 18.
third, Kaitan, is a boy of fourteen, who was a servant in the family.They were charged, under the Ceylon Penal Code, with havingmurdered one Carlina, a female domestic in the household, onJuly 31, 1907, at Talahena. After magisterial proceedings in thePolice Court of Negombo, the accused were committed for trial.They were tried at Colombo before Mr. Justice Wood Benton anda jury of seven. The trial lasted eleven days, and the jury, by amajority of six to one, found the prisoners guilty; but recommendedthem to mercy. They also entirely exonerated a Police Inspectorin charge of the case from the allegations made against him by thedefence, who had suggested that it was a conspiracy of the enemies .of Loku Nona’s husband and the police to (using the words of theJudge in summing up) “ make a clean sweep of the whole family.”The accused were sentenced to death, but the sentences have sincebeen commuted to twenty years’ rigorous imprisonment. The caseof the prosecution was that on the night of July 31, at about 10o’clock, Loku Nona, with a club handed to her by Peregrino (aservant), struck Carlina, a girl of about eighteen years of age, onthe head; that Carlina fell, crying Amma (mother); that PunchiNona put her hand over Carlina's mouth to stop further cries; andthat Loku Nona then told Jane, a servant girl about fourteen yearsof age, to bring a knife. Jane brought a knife from th^ kitchenand gave it to Loku Nona, who handed it to Punchi ..Nona, saying" cut her throat,” while Kaitan, the third accused, held his bandover Carlina’s mouth. Punchi Nona, with the knife, inflicted a cutupon Carlina’s throat. Carlina then lay still, apparently dead.Shortly afterwards, on the orders of the Mudalai (the husband ofthe first accused), Carlina was carried away towards the shore andthrown into the sea. Her body was washed ashore next morning.According to the medical evidence, “ the cut on the throat was notfatal,” and “ the cause of death was concussion of the brain due tocontusions caused by some blunt instrument like a club.” Fourdistinct contusions upon the head were found by the doctor whomade the post-mortem examination. The alleged motive for thecrime was that Carlina. had been circulating unfounded imputationson Punchi Nona’s chastity, and that m consequence both the femaleprisoners had conceived a violent hatred towards her, whichfrequently took the form of blows, and wanted to get her out of theway. At the trial both Loku Nona’s husband and Punchi Nonacategorically denied on oath the statements made by Jane. Afterthe verdict and sentence the counsel for the prisoners applied to theJudge to reserve the following questions of law for the considerationof the Supreme Court, viz., whether the Judge erred in law, first, intelling the jury that in the circumstances of the case it wasimmaterial whether the fatal blow was struck by the accused ornot; next, in not telling the jury that the witness Jane was anaccomplice, and in leaving it to the jury to say whether she was an
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accomplice or not; and lastly, in telling the jury that the evidence 1908.of Jane, even if she was an accomplice, was sufficiently corroborated November 18.by the evidence of another witness, Christina. The Judge aooededto the application, and reserved those questions for the considerationof tiie Supreme Court, which after argument, decided all of themagainst the accused, and upheld the conviction and sentences.
From that judgment the prisoners obtained special leave to appealto the Bang in Council.
Sir Robert Finlay, K.jC., in arguing the case for the appellants,pointed out that the evidence against .the accused rested entirelyon the unsupported testimony of the young native servant Jane,who claimed .to be the only eye-witness of the alleged crime. Evenso, there was no proof that the blow or wound said by Jane to havebeen inflicted by the accused caused her death. Jane was a witnessknown to be very unfriendly to some of the accused, who hadpunished her for laziness and other faults. Jane was twice examined,once in the Police Court and afterwards at the trial at Colombo,and the discrepancies and inconsistencies in her evidence on thetwo occasions were numerous, remarkable, and self-contradictory,suggesting that her story was fabricated, and that she was not thewitness of truth. The learned counsel dwelt i‘n detail on the con-tentions that Mr. Justice Wood Benton had erred in law, and in hissumming up misdirected the jury in dealing with various aspects ofthe case to the detriment of the accused. It would be unsafe, hesubmitted, to convict the prisoners on the uncorroborated testi-mony of Jane, who on her own showing, was an accomplice, andwhose whole story was a tissue of falsehoods, prevarications, andcontradictions, while it was conceded that there was absolutelyno foundation whatever for the alleged motive for the murder.
No doubt Carlina met her death by foul play, but at the worstthere was only some vague suspicion against the accused, whichhad been dispelled by the evidence adduced on their behalf. He. asked their Lordships, in all the circumstances, to quash theverdict and sentence.
Mr. F. H. M. Corbet, following on the same side, first commentedon the utter want of corroboration of Jane’s story. In the Indianand other Courts greater stress was laid, even than in England, bnthe absolute necessity of the evidence of alleged accomplices beingcorroborated. If Jane had been in the dock instead of the witness-box, she must have been convicted, as she confessed to have takenher unwilling fellow-servant into her mistress’s presence and broughtthe knife, with which her throat was cut. In fact, the guilt of thelad Kaitari, who was now undergoing twenty year's, rigorous im-.prisonment, was far inferior to Jane’s for he really took a veryminor part in the affair. If Jane were an accomplice, she oughtto have been corroborated, not only in material particulars, but alsoin such a way as to identify each of the three accused. If she were
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1908. not an aooomplice, her story was incredible, and had been controvertedNotomber 18. Qn every agential point. Her evidence teemed with contradic-tions, for she gave two distinct and inconsistent stories during theinvestigation.'__
Mr. Horace Avory, K.C., who appeared in support of the convic-tion, submitted that there was ample evidence on which the jurymight have acted, and did act, and that there had been no materialmisdirection on the part of the learned Judge and no miscarriage ofjustice. The jury appeared to have paid the greatest attention tothe case during the long investigation.
The Earl of Halsbury said the jury did not seem to have enter-tained any animus against the accused, for they actually recom-mended them to mercy, on the ground of provocation by Carlina’srefusal to come to her mistress when sent for. That seemed to himan extraordinary recommendation.
Mr. Avory said both Jane and Carlina had been ill-treated andbeaten by the accused, and Jane had actually attempted to commitsuicide. It was no wonder, if it were the custom of the country to .molest and ill-treat female servants, that Carlina refused to comewhen sent for. The jury were entitled to have acted on the evidenceof Jane alone, as her complicity in the crime was only nominal;,but there was ample corroboration of a general kind all through herstory, which satisfied every rule of practice. The Ceylon EvidenceOrdinance provided that an accomplice should be competentwitness against an accused person, and that a conviction was notillegal merely because it proceeded upon the uncorroborated testi-mony of an accomplice. He submitted that the acts of the accusedamounted to murder, and that it was for the jury, who saw and heardthe witnesses, to accept their evidence or not, and to estimate itscredibility. He referred to the- rule laid down by the Privy Councilin In re Dillet,1 viz., “ Her Majesty will not review or interferewith .the course of criminal proceedings, unless it is shown that, bya disregard' of the forms of legal process, or by some violation of theprinciples of* natural justice, or otherwise, substantial and grave■injustice ha? been done. ”
Sir Robert F.inlay replied on the part of the appellants, urgingthat the verdict could not be allowed to stand, and that there hadbeen a real'miscarriage of justice in the case.
The Lorct^Chancellor, in giving judgment, said:—Their Lordshipsconsider that this case does not come within the principle laid downin Billet's /case, regulating the circumstances utter which theirLordships ';are able to advise His Majesty to set aside a conviction.Their Lordships will therefore humbly advise His Majesty to dismissthis appeal.
Appeal dismissed.
> (1887) L. R. IS App. Cos. 459.
H. M. RICHARDS, ACTING GOVERNMENT PRINTER, COLOMBO, CEYLON.