H.C. KANDY 67/74
M. C. ANURADHAPURA 50580
04, 05, 06, AUGUST 1976.
Administration of Justice Law-S.11, 13. S.14(3), S.54, S.212, S.348, S.349,S.354 of the Act – High Court – Indicted – Jury Trial – Application by Accusedto direct the Jury to return a verdict of not guilty – Acquittal – Premature -Applicability of S 212(2) – Revisionary powers of the Supreme Court -material irregularity. Functions of the Jury – Failure to conform to S.212(2),is it Fatal?
The Accused – Respondent was indicted on a charge of Murder committedon 15.05.73. The trial commenced on 6.07.1976 and on 13.07.1976 after 4out of 49 witnesses listed had given Evidence the Counsel for the Accused- Respondent applied to the judge to direct the jury to return a verdict of notguilty, on the ground that the evidence led up to that point of time as well asthe evidence that could be led through the other witnesses listed, did notdisclose that the Accused committed the offence. The learned trial judgeaccepted this position. The Attorney-General sought to revise the said order.
In terms of S.11, 13 and 54 of the AJL the Supreme Court appears tohave the widest powers of Revision in respect of the proceedings of a HighCourt. By its nature revision involves the supervision by a Superior Court ofthe proceedings of a subordinate Court to ensure the due and orderlyadministration of Justice, and prima facie its exercise is peculiarly calledfor in cases in which no remedy such as an appeal is available.
Revision like an appeal is directed towards the correction of errors but it issupervisory in nature and its object is the due administration of justice andnot primarily or solely the relieving of grievances of a party.
The provision that the Court may upon Revision make such order, as itmight have made had the matter been brought up in due course of appealmay have been enacted because of the recurring discussion in Courts,whether powers of revision can or should be exercised where the mattermight have been brought up in appeal, had S.354 stood alone the argumentthat, by reason of the Provision relating to the orders which a Court maymake in revision, the remedy by way of revision may be exercised only in acase where an appeal lay may have been valid. S.354 being an enablingprovision it does not have the effect of impliedly excluding the exercise ofthe wide powers of Revision given by other provisions in cases where noappeal lies.
“In exercising the powers of Revision this Court is not tremelled by technicalrules of pleading and procedure. In doing so this Court has power to actwhether it is set in motion by a party or not and even ex mere motu”.
Under the provision of S.212(2) AJL the judge can direct the jury toreturn a verdict of not guilty only at the close of the prosecution case.However a practice appears to have developed in our Courts of judgesstopping a case even before that stage is reached. There is no reason todisagree, if it is apparent to Court as well as to counsel that to continue isto waste time and to flog a dead horse, the case should of course bestopped.
Again if prosecuting counsel conceeds or is constrained to admit that allthe Evidence on which the prosecution case is based has been led andwhat remains to be led is formal Evidence or other supporting Evidencewhich will not take the case any further, then the virtual end of the prosecutioncase has been reached and a Court may fairly act under S.212(2) AJL.
However if there is such other Evidence still to be led on behalf of theprosecution which the Judge has to reckon and give weight to in consideringwhether there is a case to go to the Jury it appears that a judge will beacting contrary to S.212(2) AJL in making a direction before he hears thatEvidence.
The Learned Judge acted not in compliance with but contrary to S.212(2)when he took up considering of the question whether there was a case togo to the jury, before he heard ail the material evidence he had to considerin coming to a decision.
This was a case of circumstantial evidence. As the prosecution relied forproof of its case on circumstantial evidence, he had to consider the totaleffect of the relevant facts and circumstances. The Learned Judge has notreally done so, he has failed to consider the total effect of the facts reliedon by the prosecution in such manner as was required in a case ofcircumstancial evidence, and that he has been led into committing thiserror by according to the application, to go into the matter before the closeof the case for the prosecution.
Failure to conform to S.212(2) was not Technical but substantial andmaterial as it has resulted in an erroneous decision to withdraw from thejury a case which had to be left to their decision.
A direction in terms of S.212(2) erroneously made in such a case woulddefeat the proper working of a Trial by jury before a judge and would amountto a non-compliance with a fundamental principle relating to such a trial.
As the contravention of S.212(2) was not Technical but substantial andmaterial and it has led to a decision which would have as its effect orresult, the breach of a fundamental rule relating to a Criminal Trial byjudge and jury – the Supreme Court would act in Revision.
Application in Revision by the Attorney-General of an order made by theHigh Court Judge of Kandy.
Cases referred to:
Goonewardene v. Orr 1 ACR 172.
Amarasuriya Estates Ltd., v. Ratnayake 59 NLR 476.
Bandulahamy v. Silva 2 Current LawReports 67.
Sabapathipiliai v. Arumugam and Another 27 CLW 5.
Perera v. Agidahamy 48 NLR 87.
AG v. Podisingho 51 NLR 385 at 391.
Pauline de Croos v. Queen 71 NLR 169.
S. C. 66/67 M. C. Colombo 34638/A Trial at Bar.
Curly v. United States 81 U.S. App. D. C. 389.
Rathinam v. Queen 74 NLR 317 at 327.
Queen v. Karthenis de Silva 70 NLR 66 at 67.
Ranjit Abeysuriya, D. P. P. with Tilak Marapona, S.S.C. and TivankaWickremasinghe, S.S.C. for A.G.
Dr. Colvin R de Silva with A. C. de Zoysa, Mrs. M. Muttettuwegama, W. deSilva S. J. Gunasekara, J. de Silva, B.C. de SaramA. Deen and W. Wickremaratne for Accused-Respondent
Cur. adv. vult.
14 September, 1976.
JUDGMENT OF THE COURT
This is an application by the Attorney-General for revision of anorder made by the learned High Court Judge of Kandy, holding thatthere is no evidence, upon which the Jury could find the Accused-Respondent guilty. The trial in which the order was made commencedon 6th July, 1976 and on 13th July, after four out of the 49 witnesseslisted on the indictment had given evidence, counsel for the Accused-Respondent applied to the Judge to direct the Jury to return a verdict ofnot guilty, on the ground that the evidence led up to that point of time,as well as the evidence that could be led through the other witnesseslisted on the indictment, did not disclose that the Accused committedthe offence.
After hearing submissions of the defence counsel and StateCounsel, the learned trial Judge made the order which is sought to berevised, State Counsel then stated that it was the intention of State tofile papers in revision, if they desired to contest the order afterconsideration, and moved for an adjournment before a verdict was madeand an order of acquittal entered in the indictment. The learned HighCourt Judge acceded to his application.
The Accused-Respondent was indicted on a charge of murdercommitted on 15.05.1973. A trial on the indictment was held at theHigh Court of Kandy at which the evidence of 37 witnesses was led onbehalf of the prosecution. At the conclusion of the case, the Accused-Respondent was by the unanimous verdict of the Jury found guilty. Onappeal this Court ordered a retrial to be held on the same charge,stating, “we are of the opinion that there was material before the Juryupon which the Accused might reasonably have been convicted, butfor the misdirections referred to earlier, we would accordingly order anew Trial”.
As this application raised for the first time the question, whetherthe powers of revison of this Court extended to proceedings of a trial ata High Court before a Judge and Jury, an order was made under Section14(3) of the Administration of Justice Law that it be heard by a Benchof five Judges, and the present Bench was accordingly constituted todetermine this matter.
In support of the application the learned Director of PublicProsecutions took the points, that the learned trial Judge actedprematurely, before all the evidence was led, and not at the close ofthe prosecution, that he failed to evaluate correctly the circumstantialevidence that was available against the Accused, and that in thecircumstances the exercise of the powers of revision of this Court wascalled for to prevent a failure of Justice. Learned Counsel for the Accused-Respondent submitted that the powers of this Court did not extend toacting in this matter, that, even if they did, the Court should not exercisethem on the facts of this case, and that the learned trial Judge hadacted correctly and justifiably.
Section 11 of the Administration of Justice Law, which is part ofChapter 1 dealing with ‘The Judicature”, confers the widest revisionaryjurisdiction on this Court. That provision reads:-
‘The Supreme Court shall be the only superior Court of record andshall have, subject to the provisions of this law, jurisdiction for thecorrection of all errors in fact or in law committed by any subordinateCourt, and sole and exclusive cognizance by way of appeal, revision'and restitutio in-intergrum of all actions, proceedings and matters ofwhich such subordinate court may have taken cognizance and suchother jurisdiction as may be vested in the Supreme Court by law. In theexercise of its jurisdiction, the Supreme Court may, in accordancewith law, affirm, reverse or vary any judgment or order, or give direc-tions, to such subordinate court, or order a new trial or a further hearing.It may if necessary, receive and admit new evidence additional to, orsupplementary of, the evidence already taken in such subordinatecourt.”
Section 13 of the Administration of Justice Law provides what theSupreme Court may do in the exercise of its revisionary powers:
S.13.The Supreme Court, may, ex mere motu, or on applicationmade, inspect and examine the records of any subordinate court, and,in the exercise of its revisionary powers make any order thereon as theinterests of justice may require”.
It is provided that in Chapter 1, in which Sections 11 and 13 areincluded “subordinate court” means any High Court, District Court or
Magistrate’s Court vide: Section 54 of the Administration of JusticeLaw.
In terms of these provisions, the Supreme Court would appear tohave the widest powers of revision in respect of the proceedings of aHigh Court.
Dr. de Silva, while conceding that a very wide jurisdiction is conferredon this Court, submitted that the powers that may be exercised by itare restricted by subsequent provisions. He said that the exercise ofpowers conferred by section 11 is in respect of appeals expresslyrestricted by Section 348, that provision reads:
“Subject to the provisions of the next succeeding sections theSupreme Court may upon the hearing of an appeal exercise any of thepowers conferred upon it by Section 11”.
Section 349 deal with the orders this Court may make on hearingof appeals in criminal cases or matters from District Courts orMagistrates Courts and High Courts respectively. He submitted that asimilar restriction is effected in respect of the exercise of powers ofrevision by the provision for the kind of order that may be made containedin Section 354(1) which reads:-
“The Supreme Court may call for and examine the record of anycase, whether already tried or pending trial in any Court, for the purposeof satisfying itself as to the legality or propriety of any judgment ororder passed therein, or as to the'regularity of the proceedings of suchcourt, and may, having adopted such procedure as it may consider fit,upon revision of the case so brought before it pass any judgment ormake any order which it might have made had the case been broughtbefore it in due course of appeal.”
Dr. de Silva submitted that, there being no appeal in a matter ofthis kind, there was no judgment or order which could be made inrevision in this matter in terms of the above provision. This submissioninvolves or amounts to the contention that unless there is an appealavailable in respect of any matter, there can be no exercise of powersof revision. But by its nature revision involves the supervision by asuperior Court of the proceedings of a subordinate Court to ensure thedue and orderly administration of Justice and, prima facie, its exerciseis peculiarly called for in cases in which no other remedy, such as anappeal is available. In fact, in the past this Court has interfered by theexercise of its powers of revision in a large number of cases in whichno appeal lay. Dr. de Silva, however, submitted that in 1972 with theRepublican Constitution there was a complete break with past legislationand that Section 354 of the Administration of Justice Law should beconstrued by reference to the plain meaning of the words used. Thelearned Director of Public Prosecutions, however, pointed out that theprovision is not new but is one that was found in Section 753 of theCivil Procedure Code in almost identical terms. That enactment reads:-
“The Supreme Cout may call for and examine the record of anycase, whether already tried or pending trial, in any court, for the purposeof satisfying itself as to the legality or propriety of any judgment ororder passed thereon, or as to the propriety of the proceedings of suchcourt, and may upon revision of the case so brought before it pass anyjudgment or make any order which it might have made had the casebeen brought before it in due course of appeal instead of by way ofrevision.”
In Goonewardene v. Ort<Hutchinson, C.J. held that the practicewas not to exercise the power of revision under Section 753, where theremedy of appeal was open, and, on that ground, dismissed theapplication for revision.If, owing to the nature of the order provided forby Section 753, revision could only be exercised in cases in which anappeal lay, and the practice was not to exercise the powers of revision,where the remedy of appeal was open, revision would have been availableonly in the very small and limited number of cases in which there wasground for departure from the practice. But this court has not in factfound any difficulty in exercising its powers of revision in civil cases inwhich no appeal lay and has commonly done so. It has acted at theinstance of persons who were not parties to an action, and to whom anappeal was therefore not available, vide Amarasuriya Estates Ltd. v.RatnayakdZ). In fact, it is where an appeal is available that this Courthas found difficulty about acting in revision. In Bandulahamy v. Silvaf3)it was stated:-
“Although the Supreme Court will not generally deal in revision withdecisions which could have been brought before it by way of appeal,there is no hard and fast rule which precludes it from doing as underproper circumstances”.
There is a solitary instance where a single Judge took the viewthat Section 753 confers revisionary jurisdiction only in cases in whichan appeal lay but for some reason was not taken, vide Sabapathipillaiv. Arumugam and another. In a later case, Nagalingam, A.J. rejectedthis proposition and stated that the observations made in Sabapathipillaiv. Arumugam (supra) should be confined to the facts of that case, videPerera v. Agidaham/S) Nagalingam, A.J. went on to say:-
“The limitation that is imposed by this clause is as regards theorder the Court may pass, namely, if it could not have passed a particularorder on an appeal then such an order could not be made even if thematter be brought before it by way of revision.”
Notwithstanding this dictum, however he acted in revision thoughthe matter was one in which no appeal lay; moreover, the dictum, ifinterpreted in the way sought to be done on behalf of the respondent,is inconsistent with and at variance with the settled practice of thisCourt.
Revision, like an appeal, is directed towards the correction of errors,but it is supervisory in nature and its object is the due Administrationof Justice and not, primarily or solely, the relieving of grievances of aparty. An appeal is a remedy, which a party who is entitled to it, mayclaim to have as of right, and its object is the grant of relief to a partyaggrieved, by an order of a court, which is tainted by error. Revision isso much regarded as designed for cases in which an appeal does notlie, that some provisions granting powers of revision expressly providesuch a limitation. For example, Section 115 of the Indian Civil ProcedureCode reads:-
“The High Court may call for the record of any case which hasbeen decided by any court subordinate to such High Court and in whichno appeal lies thereto .”
There is no doubt that the provisions of our law granting powers ofrevision have been expressed in wide terms, without any limitation tocases in which no appeal lies. But whether powers of revision extendto such cases, or whether they should be exercised in such cases,have been the subject matter of consideration in judgments given fromtime to time in both civil and criminal cases.
The provision, that the Court may upon revision make such orderas it might have made had the matter been brought up in due course ofappeal, may have been enacted because of the recurring discussion inthe Courts, whether powers of revision can or should be exercisedwhere the matter might have been brought up in appeal. Be that as itmay, had Section 354 stood alone, the argument that, by reason of theprovision relating to the orders which a Court may make in revision, theremedy by way of revision may be exercised only in a case where anappeal lay, may have been valid. But Section 11 and 13 also providedfor the exercise of powers in revision. Section 354 being an enablingprovision, we are unable to take the view, that it has the effect ofimpliedly excluding the exercise of the wide powers of revision givenby other provisions in cases where np appeal lies. We are, fortified inthe opinion we have formed by the fact that over a long period, despitethe identical provision in Section 753, this Court has had a practice ofexercising powers of revision, in civil cases where no appeal lay somuch was this its practice, that the only matter which troubled thecourt was whether, it should exercise powers of revision in a casewhere an appeal lay.
It was next contended on behalf of the Accused-Respondent that,as the caption to the petition filed in these proceedings stated it wasan application made under S.354 of the Administration of Justice Law,this Court should exercise the powers of making orders conferred bythat section alone and should not exercise the powers of making ordersconferred by the other provisions in Section 11 and 13. This contentionseeks to apply to the matter of revision a degree of technicality whichis quite inappropriate, for this Court may exercise revisionary powersin terms of Section 13 even ex mere motu. In Attorney-General v.Podisingho,(6) Dias S.P.J. said:-
“I desire to point out that in exercising the powers of revisionthis Court is not tremelled by technical rules of pleading andprocedure. In doing so this Court has power to act whether it isset in motion by a party or not and even ex mere motu.”
It was urged that there was no order made by the learned HighCourt Judge which could be the subject of revision; that the learnedHigh Court Judge had only set out a determination or opinion and that,eventhough he termed it an order, it did not become one till he acted onhis views and gave a direction to the Jury. It is unnecessary to considerwhether what has been set down by the learned trial Judge is or is notan order; the short answer to this contention is that in the exercise of, revisionary powers this Court can consider not only the legality orpropriety of a judgment or order but also the regularity of proceedings.
We are accordingly of the view that this Court has the power to actin revision in this matter, if it is satisfied that adequate grounds existfor the exercise of such powers. We are not unmindful, of the fact thatas there is no appeal in this matter, the power of revision must not beexercised by us so as to admit, by a side wind, an appeal. We thinkthat there must be shown such clear and manifest error and/or materialirregularity as calls for the intervention of the Court or prevent or remedythe breach of a fundamental rule relating to a criminal trial or the failureof justice.
Section 212(2) of the Administration of Justice Law provides:-
“When the case for the prosecution is closed, if the Judgeconsiders that there is no evidence that the Accused committedthe offence he shall direct the Jury to return a verdict of “notguilty.”
Under this provision the Judge can direct the Jury to return a verdictof not guilty only at the close of the prosecution case. A practice appearsto have developed in our Courts of Judges stopping a case even beforethat stage is reached. This matter is referred to in a judgment of theCourt of Criminal Appeal in Pauline de Croos v. The Queen,
“The procedure actually adopted by the learned Judge in this case,is to our knowledge, not infrequently resorted to by Judges in this
country when it becomes apparent to the Court and counsel that tocontinue is to waste precious time and that there is no purpose of“flogging a dead horse”. We ourselves have no desire, at this stage ofthe development of the practice of stopping trials at their virtual thoughnot their technical end, to insist on technicality to the point of almostsanctifying it.”
There is no reason to disagree with this dictum; if it is apparent toCourt as well as to counsel that to continue is to waste time and to floga dead horse, the case should of course be stopped. Again, ifprosecuting counsel concedes or is constrained to admit that all theevidence on which the prosecution case is based has been led andwhat remains to be led is formal evidence or other supporting evidencewhich will not take the case any further, then the virtual end of theprosecution case has been reached and a court may fairly act underSection 212(2). But if there is such other evidence still to be led onbehalf of the prosecution which the Judge has to reckon and give weightto in considering whether there is a case to go to the Jury, it appearsto us that a Judge will be acting contrary to S.212(2) in making adirection before he hears that evidence. It was mentioned at theargument that it is not unknown for a Judge to listen to prosecutingCounsel’s opening address, ascertain from him that he had referred toall the evidence on which he relies and forthwith turning to the Jury todirect them to bring a verdict of not guilty. This procedure, if it was infact actually adopted appears to us to take the practice, referred to inthe dictum cited above, beyond all legitimate bounds and to be onethat should not be followed by High Court Judges.
In this case, the application to the learned trial Judge to act underSection 212(2) was made by the counsel for the Accused-Respondent,after only four of the forty two witnesses listed in the indictment hadgiven evidence. We do not attach importance to the numerical ratio ofthe witnesses who gave evidence as against those who were yet to becalled. But according to the order of the learned trial Judge there wasevidence, still to be called, touching even the events of the day of thefatality, that is, the fifteenth itself. There was evidence relating to theentry made at the station by the Accused-Respondent at about 9.05p.m. Apart from that, as this was a case of circumstantial evidence,there were facts and matters that took place prior to that day and afterthat day that were vital to a proper consideration of the case for theprosecution. Learned State Counsel who appeared at the trial hadsubmitted to the learned trial Judge that the application was prematureat that stage. We are of the view that the learned Judge acted, not incompliance with, but contrary to, Section 212(2) when he took upconsideration of the question whether there was a case to go to theJury, before he heard all the material evidence he had to consider incoming to a decision.
As the prosecution relied for proof of its case on circumstantialevidence, he had to consider the total effect of the relevant facts andcircumstances. The learned trial Judge has not really done so. In hisorder he considers first the evidence that was given and the evidencethat the prosecution had not yet led but would be leading, in relation tothe events of the 15th May, 1973 and states that there is nothing inthat evidence, which could afford proof of a motive for the Accused tokill the deceased. He then examines that evidence further and states."I would therefore hold that the evidence available to prosecution ofevents leading up to the time of the discovery of the body could notsuggest a reasonable inference that the Accused was the killer.”
He then addressed his mind to the evidence which the prosecutionintended to lead of what transpired after the discovery of the body, andexamines the effect of the facts on which the prosecution intended torely. He then states his final conclusion thus, “I am therefore of theview that on the evidence tendered up to the present stage it is notpossible for a reasonable inference to be drawn that the Accused wasthe killer. I am also of the view that the evidence which the Crownintends to tender and which has been indicated to me by learned StateCounsel would not enable one to draw the inference that the presenceof the Accused at the culvert when seen by Korassagolla is consistentonly with his guilt”.
It appears to us that the learned trial Judge has failed to considerthe total effect of the facts relied on by the prosecution, in such manneras was required in a case of circumstantial evidence, and that he hasbeen led into committing this error by acceding to the application to gointo the matter before the close of the case for the prosecution.
The learned trial Judge may be strictly correct when he says thatthe submission that the deceased tried to force the hand of the Accusedunder threat of disclosure to the Accused’s wife of their illicit andclandestine affair was not based on any facts. But the evidence relatingto the association that had existed between the deceased and theAccused was by no means irrelevant. A police sergeant, living in officialquarters with his wife and family at Galenbindunuwewa, would notwelcome the advent at that place of a woman, with whom he has hadan illicit and clandestine affair for a period of five years. There are furtherattendant circumstances. He had been making a monthly payment toher till February 1973, and apparently no payment thereafter. The womanhad taken the same bus as he did from Kandy to Kekirawa, and whenhe changed into another bus at Kekirawa to come toGalenbindunuwewa, she too had got into the same bus, but she hadno conversation with him. When he got down from the bus, she followedfifteen feet behind him and, though they were apparently goingindependently, a person who saw them got the impression that shehad come with him. He thought that she would be going to the PoliceQuarters.
The Accused had to make a return entry at the station but wasunable to do so, as the information book was being used by anotherofficer. He left for his quarters and returned later and made the entry at9.05 p.m. On both occasions he was wearing dark trousers. In betweenat about 8.30 p.m. he was seen by a witness on the road at a point,from which access could be had to the place where the body of thedeceased was found the following morning. At that time he was dressedin a short sleeved shirt and khaki shorts. According to the medicalevidence, the deceased would have come by her death between 8.30and 11 p.m. that night. The entry made by the Accused at 9.05 p.m.was made in writing, quite unlike his usual writing, which suggestedthat he was greatly excited. On the next morning the body was foundwith the hands tied with the saree and the deceased’s suit caseransacked and her belongings strewn..She had injuries on her privateparts. These conditions suggested rape and robbery. The medicalevidence, however, was that the injuries would not have been causedas a result of forcible sexual intercourse. The prosecution suggestedthat there had been a deliberate setting of the stage, as it were, tomislead. Pieces of two tom photographs of the deceased were found
at some distance and this might be an indication that the killer did notwish the identity of the deceased to be discovered. The Accused wasone of the police officers who came to the scene on the next day. Heremarked that he thought she was the woman who travelled in the busthe previous day, but he did not identify her. A bill written in Tamil wasfound and the Accused had one Mohamed Ali read it to him. On itsback was the name of the deceased; the Accused suppressed it.
We wish to state at once that what we have set out above, is notwhat we hold or think has been proved by the evidence; we have setout the matters that had to be considered, on the assumption that theprosecution evidence is accepted and that all reasonable inferencesthat could arise from the facts deposed to are made. In other words,we have set out above the matters in regard to which there was evidencefor the prosecution. In making a decision whether or not there is acase to go to the Jury, the trial Judge must proceed on the basis thatthe prosecution evidence will be accepted and that all inferences thatmay legitimately be drawn from them will be drawn. It is on that footingthat we have adduced the matters that had to be considered by thetrial Judge in coming to his decision and set them out above.
On this evidentiary material the case in our opinion, had to go tothe Jury. It is not possible to take the view that on this evidence, ifaccepted in its entirety and acted upon, a jury could not find theAccused guilty beyond reasonable doubt. The proper approach to thequestion has been set out in an order of the Judges in the Trial-at-Barwith a Jury in S.C, 66/67(8).
The true rule in our opinion is that where the Judge concludes thatthe evidence, even if believed by the jury and the legitimate inferencetherefrom do not permit a conclusion of guilt beyond reasonable doubtto a reasonable Juryman, he must direct an acquittal.”
As stated by us, the evidence in this case, if believed by the Jury,and the legitimate inferences therefrom did permit a conclusion of guiltbeyond a reasonable doubt to a reasonable Juryman. The order in theTrial-at-Bar contains certain illuminating passages from the judgmentin Curly v. United States,(9>. In some of them the Court appears to havebeen influenced by the American doctrine of substantial evidence butthere are passages which are useful:-
“It is not disputed that upon a motion for a directed verdict, theJudge must assume the truth of the Government’s evidence and givethe Government the benefit of all legitimate inferences to be drawntherefrom.”
Again dealing with the functions of the judge and the jury the Courthas said:
“The functions of the jury include the determination of the credibilityof witnesses, the weighing of the evidence, and the drawing of justifiableinferences of facts from proven facts. It is the function of the Judge todeny the jury any opportunity to operate beyond its province; The jurymay not be permitted to conjecture merely, or to conclude uponspeculation or from passion, prejudice or sympathy. The critical pointin this boundary is the existence or non existence of a reasonabledoubt as to guilt. If the evidence is such that reasonable juryman mustnecessarily have such a doubt, the judge must require acquittal, becauseno other result is permissible within the fixed bounds of juryconsideration. But if a reasonable mind might fairly have a reasonabledoubt or might fairly not have one, the case is for the jury, and thedecision is for the jurors to make. The law recognizes that the scope ofa reasonable mind is brand. Its conclusion is not always a point certain,but, upon given evidence, may be one of a number of conclusions.Both innocence and guilt beyond reasonable doubt may lie fairly withinthe limits of reasonable conclusion from given facts. The Judge’s functionis exhausted when he determines that the evidence does or does notpermit the conclusion of guilt beyond a reasonable doubt within the fairoperation of a reasonable mind.”
We are of the view that the failure to conform to Section 212(2)was not technical, but substantial, and material, as it has resulted inan erroneous decision to withdraw from the jury a case which had to beleft to their decision. For the proper working of trial before Judge andJury, it is important that a Judge should not, by a premature anderroneous order that there is no case to go to the Jury, preclude theJury from performing its proper function of determining the credibility ofwitnesses, the weighing of evidence, and the drawing of justifiableinference from the proved facts and thereby arriving at a verdict. Thelearned trial Judge has tried to be uniformly fair to both parties and hasmade the order, because he conceived it to be his duty to do so toavoid possible injustice to the Accused. But as the acquittal of aguilty man also results in a failure of justice, it is necessary that acase in which there is evidence, should be left to the jury to decide.
A direction in terms of Section 212(2) erroneously made insuch a case would defeat the proper working of a trial by Jurybefore a Judge, and would amount to a non-compliance with afundamental principle relating to such a trial.
As we have indicated earlier, we are not disposed to exercise ourpowers in revision to give, by a side wind, an appeal in a matter wherethere is no right of appeal. Accordingly, if what was involved was nomore than an error, we should not have been disposed to interfere. Butin this matter the contravention of Section 212(2) was not technical butsubstantial and material, and it has led to a decision, which wouldhave, as its effect or result, the breach of a fundamental rule relating toa criminal trial by Judge and Jury. Accordingly, we thought it right tointervene and act in revision, and at the end of the argument we madeorder setting aside all proceedings and directing a fresh trial on thesame charge before another High Court Judge and another Jury.
It has been the practice not to direct a fresh trial of an Accusedperson for a third time, vide Rathian™. The practice does not appearto be so where one trial has not reached the stage of verdict by thejury, vide The Queen v, Karthenis de Silva.m We gave anxiousconsideration to the matter of ordering a fresh trial and, much as weregretted the hardship to the Accused-Respondent, we were unable totake any other view than that such a trial should be held. We were ofthe view that in any event the practice referred to above should not beapplied in this case because the need for a new trial arose in the wayit did.
We wish to state that this Court will not exercise its powers ofrevision in regard to proceedings of a High Court, save in veryexceptional circumstances. In particular, this Court will not entertainan application which will have the effect of interrupting the proceedingsof a trial in a High Court. For example, no application will be entertainedby this Court at the instance of either the prosecution or the defence inrespect of an order made by a High Court as to the admission or rejectionof evidence. Generally, in respect of all matters which take place duringthe course of a trial, the parties, should await the final verdict as anacquittal or a conviction, as the case may be, may render unnecessaryan application for the intervention by this Court. In this matter, theorder of the learned High Court Judge, when given effect to by him,would have terminated the trial.
We wish to stress that we have not considered whether theevidence led by the prosecution is to be believed and what that evidenceestablishes. We have only done, what a Judge may do at the close ofthe prosecution, case, namely, considered what evidence theprosecution has led, and on the basis of that evidence consideredwhether there was a case to go to the Jury. We have not consideredthe weight, credibility or reliability of the evidence and we have definitelynot considered the question whether the Accused is or is not guilty,and nothing we have said should be taken to imply any view on thatquestion.
SAMARAWICKRAMA A.C.J.RAJARATNAM, J.WIJESUNDERA, J.VYTHYIALINGAM, J.TITTAWELA, J.All proceedings set aside fresh trial directed on the same chargebefore another High Court Judge and another Jury.
ATTORNEY- GENERAL v. GUNAWARDENA