014-NLR-NLR-V-58-REGINA-v.-V.-DIAS-APPUHAMY-et-al.pdf
[lx the Court of Creuisal Appeal]
Present: Basnayake, A.C.J. (President), PuIIe, J., and
Weerasooriya, J.
REGINA v. V. DIAS APPUHA3IY etal.
Appeals 111-112 of 1955 with Applications 171-172
S. G. 22—31. C. GaUe, 16,768
Charge of murder—Plea oj guilty to a le&ser offence—Stage at which it mag betaken—Criminal Procedure Code, ss. G, 321.
The appellants were indicted on a charge of murder. After two of the eyewitdesscs had been examined the Court permitted the accused, in thepresencoof the Jury, to plead guilty to the lesser offence of culpable homicide notamounting to murder. Tho Court then briefly summarised the evidencealready led and asked the Jury whether they wished to accept the pleatendered by the appellants. Tho Jury, however, were unwilling to acceptthe plea. Tho trial then continued and at its conclusion the Jury returned averdict of murder against the appellants.
It was contended in appeal that the appellants should not have been askedto plead until the Jury had first been asked whether they were willing to acceptthe pica and signified their willingness.
Held, that the procedure adopted by the trial Judge was not illegal.
Per Curiam :—“ It has been the practice for a considerable length of time toaccept a plea of guilty to a lesser offence when tendered in the course of a trialeven after the accused has been placed in chargo of the Jury, the procedureadopted being that prescribed in section 221 (2) with modifications to suit atrial by Jury. Our practice is tho same ns the English practice and section 6of our Criminal Procedure Code affords suflicient aut hority for tho adoption ofthat practice which is not in conflict or inconsistent with the provisions of ourCode. ”
A
iaPPEALS, with applications for leave to appeal, against twoconvictions in a trial before the Supreme Court-.
Colvin R. de Silva, with K. Sivasubramaniam and K. Charavanavmtlu(Assigned), for the 1st and 2nd accused-appellants.
V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 13, 1955. Basnayake A.C.J.—
The two appellants and two others (hereinafter referred to as the 3rdand 4th accused) were indicted on a charge of murder of one Jakoris.The evidence against them was to the effect that the 1st appellant3lviii.
ZJ. N. B 59654—1,593 (10/56)
followed by the 2nd appellant, the 3rd and 4th accused came armed withdeadly weapons'and attacked the deceased who was seated on the ridgeof a paddy field which was being harvested under his supervision. The1st appellant struck- him with' a club, the second with a kat-ty, andthe 3rd and 4th accused with clubs. The deceased died almostinstantaneously, his head being badly battered and cut.
After two of the eye witnesses had been examined the Court at therequest of the senior pleader for the appellants and the 3rd and 4thaccused asked the Jury to retire. They did so. Thereafter the followingproceedings took place according to the record
“ Mr. Karunaratne states that he is prepared to advise the 1stand 2nd accused to plead guilty to culpable homicide not amountingto murder in the course of a sudden fight- Crown Counsel states thatit seems to him on reading the Information Book extracts that therewas some incident other than the incident deposed to by the witnesses.He further states that there are certain witnesses who are not calledby him who speak to this fact. He states that he feels that there issomething more than what the witnesses depose to. One witnessleaves out the 4th accused and the other the 3rd accused. Court
states it is a matter for the jury to decide at this stage.
' .-1
Crown Counsel states that if the jury accepts this plea he is preparedto withdraw the indictment against the 3rd and 4th accused.
Jmy returns..
1st and 2nd accused plead guilty to culpable homicide not amountingto murder in the course of a sudden fight- His Lordship briefly sum-marises the evidence already led and asks thfj^fiiry whether they wishto accept the plea tendered by the 1st and 2nd accused.
Foreman states that they wish to retire and consider the matter.Thev retire at 11.30 and return at 11.35 a.m.
– .
Foreman to Court : >W;e-^tgree that the 3rd and 4th accused are notguilty but we wish to go?on with the case against the 1st and2nd accused.
• Court: I feel you want to hear further evidence as against the 1stand 2nd accused ?
Foreman : Yes.
Court : I think the proper course is to proceed with the case against.all the accused although the evidence against the 3rd and 4th accusedis not strong.
Foreman : Yes.
Court : I think, in the circumstances, it is better to go on with thecase against all four accused. Is that what jrou feel ?
Foreman : Yes.'
Court to 3Ir. Karun-aralne : Do 3-011 wish to put'finy further questionsto the two witnesses ?
3Ir. Karunaratnc : No.
Coutt: I think it is better to go on with the case against all fouraccused 1
Foreman : Yes
The trial proceeded as the Jury were unwilling to accept the plea ofculpable homicide not amounting to murder tendered by the appellants.At the conclusion of the trial the Jury returned a verdict of murderagainst the appellants and a verdict of not guilty against the 3rd and 4thaccused.
On being asked under section 305 of the Criminal Procedure Code whyjudgment of death should not be pronounced against them the 1stappellant stated—
“ I request that I be convicted of culpable homicide not amountingto murder. That is all ”.
The 2nd appellant in a long statement, gave his version of the ease. Inthe course of it he stated that, in the exercise of his right of privatedefence of person, he struck the deceased two blows with a katty whichfelled him to the ground.
The appellants were sentenced to death and the 3rd and 4th accusedwere acquitted.
Thirteen grounds of appeal were taken in the jietition of appeal, butlearned Counsel confined liimself to two of tlie grounds, namely, thatthe verdict was unreasonable and that proceedings in which the Jurywere invited to accept the verdict of culpable homicide not amountingto murder were illegal. Having regard to the evidence in the case we donot think that the submission that the verdict is unreasonable is entitledto succeed. There is ample evidence from which the Jury could havefound a verdict against the appellants on the charge of murder.
Learned Counsel’s submission in regard to the taking of the plea wasthat the 1st and 2nd appellants should not have been asked to. plead untilthe Jury, had first been asked whether they were willing to accept theplea and signified their willingness. He submitted that the tenderingof a plea by the appellants without first ascertaining whether the Jurywere willing to accept the plea caused grave prejudice to the appellants,,in that thereafter the Jury were left with the impression that theappellants had caused the death and that they had only to decidewhether the offence was murder or culpable homicide.
It was also submitted that the words of caution addressed to them bythe trial Judge in his summing up advising them to erase from theirminds the fact that a plea had been tendered, could have had. little effectin removing the prejudice created by the incident.
We are unable to uphold this contention. Learned Counsel did notmaintain that once a trial commences a pica cannot be accepted from theaccused under any circumstances ; but he submitted that the procedureobserved in the instant case did not conform with that laid down by thisCourt in the case of Si/lampalam v. The King 1 which is as follows :—
“ (1) if the Crown is not prepared to accept the pica of guilt in respectof the lesser offence, the case against the accused should proceedon the whole indictment ;
if, on the other hand, the Crown intimates its willingness to accept
the plea, the presiding Judge must himself decide whether,upon the evidence so far recorded and upon the depositionsrecorded by the committing Magistrate, it would be in theinterests of justice for the Court to accept the plea ;
if the presiding Judge, notwithstanding the Crown’s willingness
to accept the plea, decides that it should not be accepted by theCourt, the ease against the accused must proceed on the whole' indictment ;
if, on the other hand, the Judge considers that the plea may pro-
perly be accepted by the Court, he should invite the jury, inwhose charge the accused has been given after they wereempanelled to try the case, to state whether they would acceptthe plea ; and the Judge may inform the jury at this stage of thereasons why acceptance of the plea is recommended by him ;
if the jury state that they are willing to return a verdict on that
basis, the unqualified admission of guilt of the accused should,if this has not been already done, be recorded in the presence ofthe Judge and jury ; this admission becomes additionalevidence on which the jury may act, and they should then bedirected to pronounce a verdict accordingly ”.
Learned Counsel submitted that the trial Judge had omitted to take thefourth and fifth steps outlined above and that that omission causedgrave prejudice to the appellants.
The judgment referred to above does not lay down the precise stage atwhich t-lio accused should be permitted to tender his plea in the prcsencoof the Jury. There is little difference between informing the Jury thatthe accused arc willing to plead guilty to a lesser offence ancl actuallytaking the plea in their presence.
In regard to the procedure outlined in the judgment of this Court theonly essential requirement is that-, before the Jury are invited to considerwhether they arc willing to accept a pica of guilty of a lesser offence, thoprosecuting Counsel and the presiding Judge should agree that the pleais one that can be accepted.
Our attention was drawn to the case of Din gin Banda v. The Queen *.In that case after three witnesses for the prosecution had given evidcncoand before the caso for tho Crown had been closed, the followingproceedings took place :—
t; The Jury retire on the motion of Mr. Xissanka.
Counsel. My Lord, I can take a horse to water but I cannotmake it drink. I have shown every possible reason why these threegentlemen, whom the Crown have called, should not be believedin foto. In all the circumstances of tho case, I would submit that aplea of culpable homicide not amounting to murder be accepted anclI would suggest that the matter be put to the jury at this stage. '
Crown Counsel: I am not willing to take the responsibility.
Court : I shall put it to the Jury.
The Jury return.
Court to Jury : The accused in this case, gentlemen of the Jury, iswilling to tender a plea of guilty to tho lesser offence of culpablehomicide not amounting to murder on the ground that he killed .tho deceased under grave and sudden provocation. Crown Counselis not prepared to accept the plea. Nor am I prepared to commendit to you. But- if you are- prejmred to accept tho plea, I will con-sider it and tho man will plead in your presence. It is hardlynecessary for me to tell you that once a caso is entrusted to thocare of the Jury, it is for the Jury to say whether on tho materialelicited in cross-examination of the prosecution witnesses tho picture-arises that this was not a premeditated murder but somethingthat happened while the accused had lost his power of self-controlby reason of some grave and sudden provocation that transpiredat the bagatelle table. If you arc willing to accept the plea I shallget tho accused to plead. I say nothing. 'The case is entirely in3-our hands. I am merely saying that Crown Counsel is nobprepared to accept tho plea. It is not a question of his acceptingthe plea or not. If he was I would recommend it. (Herofollows directions in regard to tho facts.) If anyone of you wants togo on with the case, the case will proceed. If you are prepared to1 tlS-j-2) 34 .V. L. It. 314
■ .accepts tile plea, it must be unanimous. Tho responsibility for*he verdict is yours and jrours alone. I have told that to Juries•from the time X became a Commissioner of Assize and thereafter aJudge of tho Supreme Court. If I had accepted the plea earlier itwould havo been my responsibility. (Hero follows further directionsin regard to the facts.) If aii3'ono of j'ou wants to go oil with thocase it will proceed.
Foreman : Wo wish to retire and consider the matter.
(The Jury retire and the Court adjourns for 15 minutes.)
Foreman : Wo are unanimously of opinion that tho ease shouldproceed. ”
This Court hold that the accused had not been prejudiced by therefusal of the Jury to accept the plea and refused to interfere with theconviction of murder.
Learned Counsel also referred us to the three English cases which arecited in the case of SiUampalam v. The King (supra). In the first of thosecases, R. v. Hancock *, the appellant had been given in charge of theJury after he had pleaded not guilty to a charge of rape. At a laterstage of the proceedings lie made a statement which apparentlyamounted to a confession in the presence and hearing of the Jury, andthe confession was acted upon, and tho appellant was convicted andsentenced to three years’ penal servitude. Xo verdict was taken andthe Jury was discharged. The Lord Chief Justice held that in thosecircumstances a verdict of the Jury should have been taken.
In the second case, Dorotlnj Clara Soanes the applicant was chargedwith the murder of her child. AVhen the applicant had been given incharge of the Jury on the charge of murder, her Counsel informed theJudge that she was willing to plead guilty to infanticide, and Counsel forthe Crown expressed iiis willingness to accept that plea. The PresidingJudge, however, refused to allow it to be accepted on the ground thatthere was no indication in the depositions of the circumstances whichmust exist before a verdict of infanticide can be returned, and the trialfor murder proceeded, and the appellant was found guilty of infanticide.and sentenced to three years' penal servitude. In the course of thejudgment the Lord Chief Justice stated : ,
“ The Judge’s reason for refusing to allow a plea of guilty of infanti-cide to be accepted was that he could find no indication on thedepositions that the circumstances existed which must exist before averdict of infanticide, as distinct from one of murder, can be returned."While it is impossible to lay down a hard-and-fast rule in any class ofcase when a plea for a lesser offence should- be accepted by Counsel forthe Crown—-and it must always be in the discretion of the Judgewhether he will allow it to be accepted—in the opinon of the Court,where nothing appears on the depositions which can be said to reduce
» (1031) 03 Cr. App. II. IS.- 110IS) 32 Cr. App. li. 130.
the crime from the more serious offence charged to some lesser offencefor which a verdict may be returned, the duty of counsel for the Crownwould be to present- the offence charged in the indictment, leaving it asa’matter for the jury, if they see fit in the exercise of their undoubtedprerogative, to find a verdict of guilty of the lesser offence only. Inthis case we think that the learned Judge was not only right, but,indeed, bound to insist on the applicant being tried for murder. Therewas nothing disclosed -on the depositions which would have justifieda reduction of the charge from murder to infanticide, and, accordingly,this application is refused ”.
In the third case of Jt. r. Heyes the appellant was charged on anindictment containing counts for stealing and receiving bicycles. Hepleaded not guilty to all the counts, but after he had been given to thecharge of the Jury and subsequently granted legal aid, he stated, in thepresence of the Jury, that he desired to admit his guilt- on the counts forreceiving. No verdict was taken, and the prisoner was sentenced by the.Recorder to three years’ imprisonment.
In the course of his judgment the Lord Chief Justice said :
The shorthand note rather unfortunately does not contain anyindication that the appellant himself was asked to plead, but merely astatement that his counsel said that he wished to plead guilty. Ofcourse, that is not enough ; the prisoner must himself plead. How-ever, we are told by both learned counsel that that in fact happened.Thereupon, the jury having heard the prisoner state that he wished towithdraw his plea and to admit his guilt-, the proper proceeding wasthat they should have been told to return a verdict. Apparentlycounsel suggested to the learned Recorder that that was the propercourse, but the learned Recorder said that it did not matter. It doesmatter, because once a prisoner is in charge of a jury he can only becither convicted or discharged by the verdict of the jury, and as therewas no verdict of the jury here, the trial was a nullity. His admissionin the hearing of the jury, without the jury being asked to return averdict which ought to have been returned, was treated as equivalentto a plea. In the case of a plea of guilty, he never would have beenin charge of a jury at all ”.
None of these cases assist the appellants. Our Criminal ProcedureCode only makes express provision for the acceptance of a plea of guilty'to a lesser offence before the Jurors are chosen ; but makes no specificprovision for the acceptance of a plea of guilty to a lesser offence, after theJurors have been sworn. The provisions governing the acceptance of aplea of guilty to a lesser offence read as follows :—
– “ 221 (1). If the accused does not plead or if he pleads not guilty'jurors shall be chosen to try the case as hereinafter provided.
(1060) 31 Cr. App. R. 161.
,, (2) If the accused pleads not guilty but states that ho is willing to-plead guilty to a lesser offence for which lie might have been convictedon that indictment and the prosecuting counsel is willing to accept-such plea, the Judge may if he thinks that the interests of justice willbe satisfied by so doing order such plea of guilty to be recorded andmay pass judgment thereon accordingly, and thereupon the accused,shall be discharged of the offence laid in the indictment and such dis-charge shall amount to an acquittal. ”
It has been the practice for a considerable length of time to accept apica of guilty to a lesser offence when tendered in the course of a trial,even after the accused has been placed in charge of the Jury, the pro-cedure adopted being that prescribed in section 221 (2) with modifications-to suit a trial by Jury. Our practice is the same as the English practiceand section 6 of our Criminal Procedure Code affords sufficient authorityfor the adoption of that practice which is not in conflict or inconsistent-with the provisions of our Code.
At the close of the arguments in this case, we announced our decision,that the appeals were dismissed and that the applications were refused.,and stated that our reasons wovdd be given at a later date. Wesaccording!}' deliver our reasons.
.1 pjpeals dismissed –