085-NLR-NLR-V-62-THE-QUEEN-Appellant-and-P.-EDIRIMANASINGHAM-Respondent.pdf
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The Queen v. Edirimanasingham
[In The Privy Council]
Present:Lord Reid, Lord Tucker, Lord Denning, Lord Morris ol
Borth-y-Gest, Mr. L. M. D. de Silva
THE QUEEN, Appellant, and P. EUIRIMAN AS INGHAM, Respondent
Privy Cou-ncil Appeal No. 12 of 1960C. C. A. Appeal 106 of 195SS. C. 4—M. C. JBatticaloa, 1925
Sentence—Trial before Supreme Court—Conviction on several counts—Omission oftrial Judge to pass sentence regarding some counts—Power of Court of CriminalAppeal to rectify the omission—Court of Criminal Appeal Ordinance 2Vo. 23oj J03S, s. G (7)—Criminal Procedure Code, s. 251.
Where an accused person is convicted on several counts but the trial Judgepasses sentence in respect of one or more of the counts and omits to • ass sentencein respect of the remaining counts, the Court of Criminal Appeal is entitledunder section 6 (1) of the Court of Criminal Appeal Ordinance to pass theappropriate sentences on those counts on which the Judge has omitted so todo if it acquits the accused-appellant on the counts in respect of which sentence•was passed by the Judge and considers that the appellant has been properlyconvicted on the remaining counts.
LORD TUCKER—The Queen v. Edirirti ana sing ham
453
Appeal, with special leave, from a judgment of the Court of CriminalAppeal reported in {1959) 61 N. L. R. 160.
Y
F. H. Lawton, Q.C., with T. O. Kellock, for the appellant.
E. F. N. GrcUiaen, Q.C., with Walter Jayawardene, for the accused-respondent.
Cur. adv. vxdt.
January 17,, 1961.[Delivered by Lord Tucker]—
In an indictment dated 8th April 1958 the respondent was chargedjointly with his son in the first count that on or about 27th July, 1957they did murder one Sembakutti Kandapodi and thereby committed anoffence punishable under section 296 of the Penal Code of Ceylon. Thesecond count charged them at the time and place aforesaid and in thecourse of the same transaction with shooting one Palipody Nagamanywith a gun and causing him hurt with such intention or knowledge andunder such circumstances that had they by such act caused the deathof the said Palipody Nagamany they would have been guilty of murderand that they thereby committed an offence punishable under section 300of the Penal Code. The third count charged them at the time and placeaforesaid and in the course of the same transaction with shooting at oneEliyathamby Palipody with a gun with such intention or knowledge andunder such circumstances that had they by such act caused the deathof the said Eliyathamby Palipody they would have been guilty of murderand thereby committed an offence punishable under section 300 of thePenal Code.
The two accused were tried at a session of the Supreme Court of Ceylonin its Criminal Jurisdiction for the Eastern Circuit at Batticaloa on the8th September, 195S and following days.
On 12th September, 1958 after the Judge’s summing up the jury retiredand on their return to court were asked with regard to each separatecount whether they were unanimously agreed on their verdict in respectof each of the accused and by their foreman answered on each countthat they found both accused guilty.
The Judge thereupon said : ct Inform the verdict to the accused. Tellthe first accused that I sentence him to rigorous imprisonment for life.I sentence the second accused for rigorous imprisonment for life. ”
The verdict and sentence were formally recorded as follows :—:
“ The unanimous verdict of the Jurors sworn to try the matter of
accusation in this case is that the prisoners (1) P. Edirimanasingham
and (2) E. Gopalapillai are guilty of the offences as set out in Counts (1),
(2) and (3).
Sgd.
Foreman. ”
“ Sgd. O. W. Wanniachy
Clerk of Assize, S. C.
Batticaloa.
454
LORD TUCK.EII—The Queen >J. Erl iriincmcisi>ujlunn
On this Indictment the sentence of the Court, pronounced and.published this day, is that the prisoners (1) P. Edirimanasinghamand (2) E. Gopalapiilai be kept in rigorous imprisonment for Life.
Sgd. 0. W. WanniachyClerk of Assize, S. C.Batticaloa.”
A sentence of rigorous imprisonment for life exceeds the maximumpermitted by the Code for the offences charged in counts 2 and 3.
On 2Gth January, 1959 on appeal to the Court of Criminal Appeal byboth accused the appeal of the second accused was dismissed but theappeal of the first accused (the present respondent) against the verdictand sentence bn the first count of the indictment was allowed on theground that the verdict was not warranted by the evidence and a verdictof acquittal in his case was directed to be entered in respect of thatcharge. The jury’s verdict against the respondent on the second andthird counts was not challenged by counsel on the appeal.
It is clear from the above narrative of events that the trial Judge passedsentence on the respondent on one count only and that no question ofthe effect of what is generally referred to as a “ general sentence ”, i.c.a sentence intended by the Judge to cover more than one count, arisesin the present case. Such a sentence which is sometimes to be found incases in England both before and since the establishment of the Courtof Criminal Appeal and the Indictments Act of 1915 appears to beunknown in Ceylon having regard to the provisions of the Criminal Codeand may well be illegal, but it is not necessary further to explore thisquestion as no such sentence was in fact imposed in this case.
The Court of Criminal Appeal having quashed the conviction of therespondent on count 1 held they had no jurisdiction to pass the appropriatesentences on counts 2 and 3 on which the jury’s verdict of guilty stood.
In Ceylon where the trial Judge has omitted to pass sentence forthwithhe may of his own motion or at the instance of the prosecution passsentence at a later date but not after the close of the sessions. Therelevant part of section 251 of the Criminal Procedure Code is as follows :—
“ 251. If the accused is convicted the Judge shall cither forthwithor before the close of the sessions pass judgment on him according tolaw ”.
Accordingly the sessions having closed no question of remitting thecase to the trial Judge for sentence arose on the appeal.
The Attorney-General on behalf of the prosecution obtained specialleave by Order in Council of 12th August, 1959 to appeal against thedecision of the Court of Criminal Appeal.
LORD TTJCJCT3R.The Queen v. E'lirimnnaMnghrtm
4:55
The sole question in the appeal is whether or not the Court of CriminalAppeal were right in holding that section 6 (1) of the Court of CriminalAppeal Ordinance No. 23 of 1938 does not give them jurisdiction in acase such as this to impose the appropriate sentences on those countsof an indictment on which the Judge has omitted so to do.
Section 6 (1) is as follows :—
“ G. (1) If it appears to the Court of Criminal Appeal that anappellant, though not properly convicted on some charge or part ofthe indictment, has been properly convicted on some other chargeor part of the indictment, the court may either affirm the sentencepassed on the ajjpcllant at the trial or pass such sentence in substitution .therefor as they think proper and as may be warranted in law by theverdict on the charge or part of the indictment on which the courtconsider that the appellant has been properly convicted.”
The Court of Criminal Appeal accepted the argument of counsel forthe present respondent that the sub-section only conferred power on thecourt to pass sentence in substitution for the sentence passed by the trialJudge and that when the trial Judge has passed no sentence at all thequestion of substitution does not arise. After referring to certain Englishdecisions and in particular to the case of Rex v. O’Grady 1 the learnedChief Justice delivering the judgment of the court said they were unableto accept O’Grad.y’s case as having any persuasive force as no reasonswere given in that case for what seemed to them a disregard of thewords of section 5 (1) of the English Criminal Appeal Act of 1907 whichare identical with those of section 6 (1) of the Ceylon Ordinance.
The judgment proceeded “ In the instant case as the learned Judgehas not passed any sentence at all on the 2nd and 3rd charges we areunable to pass a sentence in substitution of that passed at the trial.The Ordinance does not empower this Court to supply the omission ofthe trial Judge ”.
Their .Lordships with respect feel unable to accept this interpretationof the section. It is in terms dealing with a case where an appellant hasnot been properly convicted on some charge or part of an indictment.This applies to count 1 in the present case. The conviction and sentencethereon no longer stand, but the court is empowered to substitute forthat which has disappeared such sentence as may be warranted in lawby the verdict on the charge or part of the indictment on which theappellant has been properly convicted. This in their Lordships’ view canonly mean that in place of the sentence that has been quashed the courtcan pass the sentence appropriate to the convictions on the remainingcounts on which the appellant has been convicted but not sentenced.The section refers to ec the sentence passed on the appellant at the trial ”.Where the court affirms such sentence the application of the sub-section
1 2S Gr. A.pp. H. 33.
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LORD TUCKER—The Que~n v. E'Tirimanrvsinghuni
may be restricted, to cases "where there has been a general sentence, butwhere the sentence passed on the appellant at the trial—in this caserigorous imprisonment for life—has been quashed the words of thesub-section in their ordinary and natural meaning appear to theirLordships to confer power on the Court of Criminal Appeal to substitutea proper sentence for that which has been quashed which can only bedone by passing sentence on the remaining good coiints. This wasthe eourse adopted in O’ Grady’s case in this country and then Lordshipssee no reason to suppose that this was done per incuriam.
It is not necessary to express any opinion as to whether or not thesub-section warrants the court in increasing a sentence passed at thetrial on some other count with regard to which there has been no appealagainst sentence. Their Lordships prefer the view taken by the Courtof Criminal Appeal in Ceylon in the unreported case of Regina v. K. G.Sediris decided on 5th March, 1956 to that reached in the present case.
Lor these reasons their Lordships will humbly advise Her Majesty thatthis appeal be allowed and that the case be remitted to the Court ofCriminal Appeal in Ceylon for such action as they may consider appropriatein the circumstances.
Appeal allowed.