030-SLLR-SLLR-1982-1-Attorney-General-vs.-D.-Seneviratne.pdf
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SUPREME COURTAttorney Generalvs.D. Seneviratne
– S.C. Appeal No. 72/80
C.A. Appeal No. 114178 — H.C.Kandy No. 253/77
Appellate Court’s functions in cases of appeal; from verdict of Jury; Murder androbbery in the same transaction; Circumstantial evidence so cogent callingfor accused person’s explanation. Accomplice — Scope of review whenSpecial leave to appeal is granted by Supreme Court.
Respondent was indicted for murder of G.P. Charlis and his wife andalso for robbery of six bags of pepper belonging to G.P. Charlis.
The Jury returned an unanimous verdict of guilty on all the counts. Atthe trial the Prosecution established (1) the footprints of the left leg inhuman blood on a newspaper found inside the room where the deceasedlay dead belonged to the accused (2) that on a statement made by theaccused a hunch of keys belonging to the deceased was found – (3) thatthe Police recovered- a recently washed black coat and a pair of blackshorts with blood stains on it. (4) that Rasheed saw a man wearing ablack coat meet Amolis a taxi driver. (5) that a man wearing a blackcoat loaded pepper into Arnolis’s car.
SC' Attorney-General r.' ’Seneviratnc303
In the face of this cogent circumstantial evidence implicating the-accused-the accused only stated that he was not guilty and knew nothing aboutthe incident. On appeal to Court of Appeal all the convictions were,setaside. The Attorney-General's application for leave to appeal was alsorefused. The Attorney-General appealed to the Supreme Court havingobtained special leave to appeal.'
•
HELD by Wceraratne J, Sharvananda J and Soza J (with WanasundaraJ and Ratwatte J dissenting):
per Weeraratneij “The summing up does not contain any substantialmisdirection or non-direction either on the facts or law. There is noreasonableu.pqtj.which.thc verdict of the jury could be interfered with"
per Soza l/‘'!WK£n *tlife Supreme Court in its discretion grants special leaveto appeal the'of review is not limited to substantial questions of
law". Since" the Supreme Court has jurisdiction to correct errors of fact
or law committed by any Court it is open to it to review the case
so far as it is pertinent to the question to be decided" where it grantsspecial leave to appeal.
An accomplice is a guilty associate whether as perpetrator or as incitoror helper in the commission of criminal acts. constituting the offencecharged of a lesser or kindred offence of which the accused could befound guilty on th'c s'a'ftic Vrldictment. Where there are special circtimstanccswhich only the accused cart dxplifin'thc accused must offeran explanation.
This was not aheases. where if be; verdict of the jury could be characterized!as unreasonable..It cannot be said that the substantial rights of the accused.,had been prejudiced or that there had been a failure of justice.
APPEAL from Judgment of the Court of Appeal
Before:
Counsel:
Argued on:
Decided on:
Weeraratne. J.
Sharvanada J.
Wanasundera J.
Ratwatte J.
SozaJ.
T. Marapona. Deputy Solicitor General withC. R. de Silva, State Counsel for AttorneyGeneral.
Dr Colvin R. de Silva with Mrs. Muttetuwegamaand N.V. de Silva for Respondent.
15.2.82,16.2.82/17.2.82,18.2.82,
•19.2.82,23.2.82 and 24th February 1982
■Cur. adv. vult:
8.4.1982
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WEERARATNE J.
This is an appeal by the Attorney-General in a case in which theaccused-respondent was indicted on charges of murder of G.P. CharlisSilva, his wife Seelawathie Weeraratne. and of robbery of a stockof pepper in the possession of Charlis Silva valued at Rs. 1.400/-which alleged offences were committed in the course of the sametransaction on the 23rd July 1973. At the trial in the High Courtof Kandy, he was found guilty on all three counts of the indictmentby an unanimous verdict of the Jury. The accused-respondent appealedagainst this verdict. The Court of Appeal while affirming the convictionon the charge of robbery, acquitted the respondent on the twocharges of murder.
The prosecution evidence reveals that the deceased Charlis Silva(aged about 58 years) and his wife a few years younger, were thesole occupants of their house situated in the village of Godamuncabout three miles from the Talatuoya bazaar. They were comfortablywell off owning about twenty-two acres of agricultural land plantedwith pepper, cocoa and coconut which provided a fair income. Alabourer named Simon, in giving evidence stated that he workeddaily in the garden of the deceased for the past eighteen years. Theyhad some hired labourers four to five years before. He stated thatthere were about twelve gunny bags of pepper in the house at thetime. According to him on the 22nd July 1973. the day previous tothe death of the deceased couple, he had as usual at about 4.30p.m. kept the garden tools in the deceased’s home and had spokento them. Then on the following morning about 7 a.m. when he cameto work he found the door leading to the bed-room padlocked fromoutside which was unusual since at night the doors were locked withdoor-bars from inside. His suspicions were aroused and he calledout to the “Mudalali”, as he was accustomed to address him andreceived no response. Simon reported this to Juwanis, a relative ofthe deceased, and Juwanis complained to the Police that morning ofthe 24th at about 10.40 a.m. When the door of the bed-room wasforced open by the police, the couple were found dead, with seriouscut injuries inflicted on each of them.
Inspector Ratnayake the O.I.C. Talatuoya Police Station had goneto the scene and found stains like blood on the floor of the verandahand on the door. He removed the hasp of the door and entered the
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Attorney-General v. Senevirame (Weeraratne. A.C.J.)
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room and saw a newspaper with blood stains on it. There were twobodies covered with gunny bags between the two beds. The bodieshad serious cut injuries on the necks, and there was blood on thefloor between the two bodies. He saw pepper strewn in the compoundand also along the- path which led for three-quarters of a mile tothe V.C. road after a short flight of steps to meet the bus road atthe Pinwatte junction. The house of the deceased couple consistedof a long verandah with a door from each room connected to theverandah. There is no connecting door from one room to the other.Access to the kitchen is from outside. Inside the room just by thefeel of the two bodies was a newspaper of the 23rd July 1 *>73. Onit was found two blood stained foot prints. That same afternoon the
O.I.C. Ratrtayake informed the Magistrate, summoned the Examinerof Finger Prints and proeeded with the investigation of the case. Thecase for the’ prosecution was based on circumstantial evidence. Themain items of evidence may be summarised as follows:-
Two foot prints of the accused-respondent stained withblood were found on a newspaper bearing the same date asthe date on which the murders were committed, namely 23.7.73.This newpaper (P^) was found inside the bed-room whcuftliebodies of the deceased persons were lying. The evidence ofthe Registrar of Finger Prints was that he was definite thatthe two prints were those of the accused-respondent.
The evidence was that death could have taken place between<S.0() and 9.00 p.m on 23.7.73 and that one weapon could havecaused the injuries on both the deceased persons.
The evidence for the prosecution established that the
accused-respondent had engaged the services of a hiring cardriver named Arnolis Appuhamv to bring his car to a pointwhich is three-quarters of a mile away from the house of thedeceased in order to load bags of pepper, that theaccused-respondent did in fact load 7 bags of pepper into thesaid hiring ear at about 11.30 p.m on 23.7.73: six out of thesaid bags were identified as gunny bags belonging to thedeceased, Charlis Silva. The following morning, police foundthat bags of pepper which had been in the bed-room of thedeceased had disappeared, and there was a trail of pepperseeds from the house of the deceased to the point where thepepper bags were loaded into the hiring car.
According to the hiring car driver, the accused-respondent
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was wearing a black coat at the time he loaded the bags ofpepper into the car. On the following day, the police recoveredfrom the possession of the accused-respondent a black coatand a pair of black shorts. The black coat was wet at the.'time of its recovery by the police and the black pair of shortshad stains of human blood according to the Government Analyst,
On a statement made by the accused-respondent, a bunchof keys was recovered from inside the gutter of the house-ofthe deceased ."THiS' buiVch of keys was identified' as one ’whichbelonged to1 the1 httliseHbld of the deceased.
In my view, the cumulative.effect of .the aforesaid items of evidenceis that a strong prima facie case, .is. made out against the accused.In the face of this evidence, the accused was content to make astatement from the dock stating, “I am not guilty, I know nothingabout this." The presence of his foot prints in blood on the newspaperis certainly an item of evidence peculiarly within his knowledge andis a matter which calls for an explanation from him. This howeverdoes not mean that, there is a burden on the accused to prove hisinnocence. The trial judge has quite properly commented on thefailure of the accused to give an explanation, having regard to theparticular facts of this case.
The Court of Appeal in its judgment sets out that learned Counselfor the appellant submitted that more than one person committedthe offence, inasmuch as there were indecipherable foot prints in thebedroom.The fact that other indecipherable foot prints were founddoes not indicate that more than one person i participated in the• murders and robbery for the reason that these indecipherable footprints may have been that of the-accused himself. In any event, theonly decipherable foot prints found in the bed-room were those ofthe accused. The fact that the foot prints were stained in bloodindicates that .the blood was fresh at the time the feet rested on thenewspaper.
The Court of Appeal has in the course of its judgment stated thatthere is, merit in Counsel’s submission that it was incredible that onlyone person had carried put;the entire plan. In this connection itmust .be noted that the; persons attacked, were an elderly couple wholived by themselves in this h.ousex As to whether the assailant, whowas undoubtedly armed, could haveiin a few moments attacked thesetwo defenceless persons is eminently a matter for the Jury.
SCAttorney-General v. Seneviratne (Weeraratnc. A.C.J.)307
As regards the suggestion that there was more than one personwho loaded the bags of pepper into the hiring car. Dr de Silvareferred us to the fact hat Rasheed in his statement to the policehad stated that a very tall man helped to load the bags of pepperinto the car driven by Arnolis and that description fitted Simon.Rasheed in his evidence in Court however denied having made sucha statement. 1 find that the trial Judge in his charge to the jury haddealt fully with the infirmities in the evidence of Rasheed and hadplaced before the jury the several contradictions between his evidencein Court and his statement to the police. As against the said statementof Rasheed, there is evidence of Arnolis that if was this accusedwho loaded the bags of pepper into the hiring car. Rasheed’s statementto the police did not constitute substantive evidence which could betaken into consideration, as Rasheed had denied making such astatement. That statement served only to impeach Rasheed’s credibility.On the question of Arnolis being an accomplice, the evidence atmost would show that he was an accomplice only in relation to thethe theft of the bags of pepper. There is no evidence to implicatehim on the charges of murder or even of robbery. In any event, aswas held by the Court of Appeal, the foot-prints on the newspaperstained with blood constituted a strong item of circumstantialevidence corroborating the evidence of Arnolis regarding the robberyof pepper.■* "
The Court of Appeal has referred to Counsel's submission as towhat happened to six of the twelve bags' of pepper which were inthe bed-room of the deceased. The bed-room does not show thatsome others were responsible for taking away the remaining six bags.In this connection it may be noted that'the bodies of the deceasedpersons were covered with gunny bags. Nor is there evidence toshow that the twelve bags were all filled to the brim With pepper.It could well be that some of the bags were not completely filledand that'thfe assailant could have emptied some of the bags and usedthem to coVer the bodies. In any event, these are pure questions offact and one must presume that Counsel would have addressed theJury on these matters.
Another complaint made by Counsel for the respondent was thatthe trial Judge erred in not emphasising to the Jury that there wasa gap of 2 1/2 to 3 1/2 hours between the time of death and thedelivery of the bags of pepper at the Pinwatte bend.,There, is evidencet'i '•here wv.s a trail of pepper from the house of the deceased to
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the bend on the road. This path was not motorahle. Thereforewhoever carried the bags of pepper would have had to do so onfoot and it would have taken him at least ten to fifteen minutes towalk this distance. He would have had to walk this distance to andfro twelve times. The time gap is therefore easily explained. Onceagain. I wish to state that these are pure questions of fact whichare solely within the province of the Jury, and upon which Counselwould have addressed the Jury. The Court of Appeal has referredto a gap of about 3 to 3 1/2 hours between the cry of distress andthe delivery of the pepper. The Court has further stated that, “thiswas a very important aspect of the case from.the point of view ofthe defence and the learned trial Judge had omitted to draw theattention of the Jury to it in the course of his charge.” The evidencein the case however, as stated earlier, was that the distance betweenthe house of the deceased and the point of the loading of the bags •of pepper to the hiring car was no less than-3/4 of a mile. Thereforethe fact that there was a gap of 3 1/2 hours between the cry of. distress and the delivery of pepper does not in any way mean thatthere was a gap of 3 1/2 hours between, the robbery and the murders.
It seems to me that when an accused person complains of non-directionon the facts he must satisfy the C'ourt of Appeal that such non-directionresulted in a miscarriage of justice. In my view however, there wasno non-direction. The trial Judge has drawn the attention of theJury to all the relevant facts.
It is significant that on the evidence of Arnolis the conclusion thatthe robbery was well planned is inescapable. On the first occasionthat the accused invited Arnolis to bring his hiring car to transportthe bags of pepper, Arnolis was unable to accede to his request.That night, not only was there no robbery, but there were no murdersas well. However on the following day when Arnolis brought hishiring car to the Pinwatta bend the 6 bags of pepper had beenremoved from the bed-room of the deceased. It was on this samenight that the deceased perosns were done to death. On the evidencethere is no doubt that the accused had been involved in the attackon the couple, for otherwise his foot-prints could not been stainedwith blood. It would have been a strange coincidence that the couplehad already been done to death at the time the accused came toremove the bags of pepper. In that event the accused would not beguilty even of robbery; he would have been guilty of theft only. Butboth the Jury and the C'ourt of Appeal have found the accused guilty
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of robbery and the accused has not appealed against his convictionfor robbery. It is somewhat illogical, in the circumstances, to acquitthe accused on the charge of murder and convict him for robberyof the bags of pepper in the possession of Charlis Silva. The trialJudge had stressed to the Jury that the element of violence was anecessary ingredient of robbery. The Jury, acting on such a direction,had unanimously found the accused guilty of robbery. It is implicitfrom such finding that the Jury had found that the accused had, inthe course of committing robbery,'used violence on the deceasedcouple which resulted in their death.
The other misdirection on the law in the summing up complainedof by Counsel for the accused-respondent was that the direction oncircumstantial evidence was inadequate, incorrect and prejudicial tothe accused. He referred to the passage where the trial Judge in thecourse of his summing up has stated as follows when dealing withthe question of circumstantial evidence, “if a certain circumstance isconsistent with the innocence of the accused and also is consistentwith the guilt of the accused, then you should not consider thatcircumstance. The doubt that arises in such an instance should beresolved in favour of the accused. Therefore gentlemen, you mustconsider as a whole these circumstances which point only to the guiltof the accused….”
It must be noted that the trial Judge is here directing the Jury asto how they should evaluate the evidence led on behalf of theprosecution since the case for the prosecution is based on circumstantialevidence. In the context it cannot be fairly said that the trial Judgehad invited the Jury to ignore the effect of circumstances which arefavourable to the accused and consistent with his innocence. In anyevent the trial Judge has on more than one occasion, directed theJury very fully that the case for the prosecution must be provedbeyond reasonable doubt. He has explained fully what reasonabledoubt means. Therefore it seems to me that the inadequacy, if any,in the direction on circumstantial evidence has not occasioned afailure of justice. Me Gready vs. Director of Public Prosecutions(1973) 57 Crim App. Ref. 424.
This brings me to the important question as to how far the Courtof Appeal could interfere with the verdict of the Jury on purequestions of fact in the absence of any material misdirections or
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non-directions amounting to misdirections on the law. Generallyspeaking it would be correct to say that it is not the function of anappellate court to re-try a case already tried by a Jury. The openingwords of Soertsz A.C.J in King vs. Endoris reported in 46 NLR 498are apposite
“Counsel appearing in support of these applications addressedus as- if we were the Jury in the Assize Court, but our functionclearly, as laid down by the Court of Criminal Appeal Ordinance,is to examine the evidence in the case in order to satisfyourselves with the assistance of Counsel that there is evidenceupon which the Jury could have reached the verdict to whichthey came, and also similarly, to examine the charge of thetrial Judge to satisfy ourselves that there has not been anymisdirection or non-direction.”
…This same point was emphasised by the Privy Council in EbertSilva vs. King 52 NLR 505. Lord Tucker delivering the judgmentof the Judicial Committee stated:-
“With regard to the first submission, the Court, after consideringa number of authorities and discussing the evidence said, “Inthe present case the death of Muthusamy has not in ouropinion, been established beyond reasonable doubt. It may beobserved with respect that this was not the issue before Court,the issue was whether there was any evidence fit to be left tothp Jury from which they might infer that Muthusamy wasdead.” Viewed in the light oJ the approach to questions offact set out ab.ove, it seems to me that, there was ampleevidence upon which the.Jury could have arrived at a verdict,that the accused respondent, was guilty on all three counts ofthe indictment.”
As I have already stated this was a case in which the circumstantialevidence , was of a sufficiently, cogent nature to call for. an explanationfrom the accused-respondent.. Howard C.L in. King vs. Seeder de Silva41 NLR p. 337, made the following observation which is relevantto the instant case:-
“In considering .whether the Jury were,entitled to convict-onsuch evidence, it must.also be borne in. mind that .the appellantgave no evidence .and-offered,, no,..explanation,/pf.the .variousparts of the evidence that incriminated him. A strong prima
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facie case- was made against the appellant on evidence whichwas sufficient to exclude the reasonable possibility of someoneelse having committed the crime. Without an explanation from.,the appellant the Jury was justified in coming to the conclusion,that he was guilty.”
I would now consider the nonTdirection which, according to theCourt of Appeal amounted to a misdirection. The Court thus commentedas follows :t
“The omission of the trial Judge to direct the Jury that even wherea murder and robbery formed part of the same transaction, a recentand unexplained possession of the stolen property will be presumptiveevidence against the accused only on a charge of robbery, and thatthere is no siroilai/ptesumption that a murder committed in the sametransactions>wa5 -committed by the person who had such possessionwas a non-direction, which amounted to a misdirection. The authorityrelied on for the above proposition is the case of Somapala vs. theRepublic 78 NLR 183”.
In that case, the Appeal Court held on the facts that the trial'Judge had seriously misdirected the Jury when he said: “In a case'where murder and robbery has been shown to form part of the saint'transaction, recent and unexplained possession of the stolen propertywill be presumptive evidence against a person on a charge of robberyand similarly be evidence against him on a charge of murder".Though that was also a case resting entirely on circumstantial evidence,the facts in that case are quite different from the facts in the presentcase. In that case, though the accused alone was committed to standhiS trial and the indictment was presented on the basis that theaccused alone was responsible for the robbery and the murder, theprosecution case at the non-summary inquiry was that more thanone person had participated in the robbery and the murder. Further.1at the trial the defence brought out material in which it was probablethat more than one person had participated in the killing, and themedical evidence indicated that probably at least two persons hadparticipated in the killing.
According to Thamotheram J, “looking at the circumstance of thekilling and the nature of the injuries, one would infer that theassailants had entered the house at night with murder in the heartrather than robbery. Either the murder was pre-planned, or something
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had transpired after the entry of the assailants into the house tomake such brutal killing necessary.” (78 NLR 183 at 185) Accordingto the judgment of the Court, the only facts which incriminated theaccused in that case were (a) the possession of a sword about 18days after the murder; (b) the possession of the stolen articles; and(c) the accused’s conduct and the finding of finger and palm printsof the accused at the scene and on the facts the prosecution couldonly rest a case of robbery against the accused. It was in the contextof those facts that the Court held that the trial Judge had erred indirecting the Jury that recent and unexplained possession of thestolen property would be presumptive evidence that a murder committedin the same transaction was committed by the person who had suchpossession . In the instant case, on the other hand, the case for theprosecution right through was that the accused alone was responsiblefor the robbery and the murder and the defence did not bring out“any material on which it was probable that more than one personhad participated in the killing that night.” Further, the foot printsof the accused, unlike the finger-prints of the accused in Somapala'scase, were found stained with blood on the newspaper P^. Coupledwith the blood-stained finger-prints was the accused’s blood-stainedfoot-prints which suggest that the accused was involved in the killingand not merely that he was present at the time of robbery.
In my view, the ruling in Somapala’s case should be confined tothe special facts of that case and has no application to the factsdisclosed in the instant case. The Jury, who are judges of fact, areentitled, as they did in the present case, to conclude that wheremurder and robbery form part of the same transaction, the personwho committed the robbery committed the murder also. The validityof such a conclusion depends on the facts of the transaction. Thetrial Judge in the present case did not, in stating the case for theprosecution, justifiably refer to any presumption under Section 114of the Evidence Ordinance. In omitting to do so there was nonon-direction which amounted to misdirection.
In my view the summing-up does not contain any substantialmisdirection or non-direction either on the facts or oh the law. Thesumming-up read as a whole is unexceptionable. There is little doubtthat the circumstantial evidence which is of strong and compellingnature implicates the accused-respondent on all three counts of theindictment. In the face of cogent circumstantial evidence the accused
SCAllorney-Oeneral v. Seneviratne (WanasunJera. J.)313
merely stated that he is not guilty and knows nothing about thisincident. Thus it seems to me that there is no reasonable basis uponwhich the verdict of the Jury could be interfered with.
I accordingly set aside the judgment of acquittal entered by theCourt of Appeal on the two counts of murder and restore the verdictof guilty on the two charges of murder brought in by the Jury.
Sharvananda J
I agree that the appeal be allowed for the reasons set out in thejudgments of Wceraratne A.C.J and Soza J.
Wanasundera, J.
In this case the accused-respondent stood charged in the HighCourt of Kandy on two counts of murder, namely, with having on23rd July 1973 murdered G.P. Charlis Silva and his wife SeelawathieWeeraratne, and on a third count of robbery, in that he had, in thecourse of the same transaction, robbed a stock of pepper from thepossession of the said Charlis Silva.
After trial, the jury, by their unanimous verdict, found theaccused-respondent guilty on all three counts. He appealed to theCourt of Appeal and the Court of Appeal acquitted theaccused-respondent on the two counts of murder, but upheld theconviction and sentence of ten year's rigorous imprisonment on thecharge of robbery. The present appeal is by the Attorney-Generaland is in respect of the acquittal on the two counts of murder.
The facts adduced at the trial revealed that the two deceasedpersons were an aged couple living alone in the village of Godamune.They were wealthy and possessed land of about 22 acres in extent,which contained pepper among other crops. It would appear thatthey also possessed a reasonable quantity of money and jewellerythough the exact quantity is not known.
They had employed a man named Simon, who was a day labourerand worked in the garden. Simon used to come for work at about7.30 a.m. and leave at about 4.30 p.m. after leaving the tools insidethe house. During this period they had no other servants and Simon
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was the last person who saw the couple alive when Simon left atabout 4.30 p.m. on the day previous to the day of the murders.Simon had come into the house and spoken to the deceased personsbefore he left for home. At about 7 a.m. next morning, when Simoncame for work, he saw that the doors of Charlis’ house were padlockedand Simon had alerted the neighbours about these murders. Considerablesuspicion was thrown on' Simon himself as being the person who hadcaused those deaths. The learned trial Judge referred to this suspicionin his charge, but dismissed it as a fanciful suggestion.
The medical evidence showed that the two deceased had beenseverely attacked with a sharp cutting instrument, and the doctorplaced the time of death at a time between 8 and 9 p.m. on thenight of the 23rd July. Although the Medical Officer says that theseinjuries on the two deceased persons could have been caused by oneweapon, he was prepared to admit, under cross-examination, the“probability” of many weapons being used and the “possibility” ofonly two weapons being used. It may be mentioned that runningthrough the entire defence case is the suggestion that more than oneperson was involved in these crimes.
There was no direct evidence of the commission of these offences.The prosecution casfe was based entirely on circumstantial evidence.
The' fdb't-prints of the'accused respondent, marked P7, stained inbloodT‘6n ai newspaper bearing the d'ate 23rd July 1973, were foundinsidd1 the''1 bedroom where the bodies were discovered. The footprints 'have been identified as those of the accused-respondent.
For the prosecution, Arnolis Appuhamy, a taxi driver, stated thatthe accUSed:respondenf had engaged the services of his taxi fortransporting some bags' of pepper and wanted it brought at aboutmid-rtight On the day of the murders to a lonely spot called thePinwa'tte bfend; which is about 3/4 mile from the house of the deceasedcouple. The accused had asked Arnolis to find a buyer for thispepper. Arnolis says that on the night of the 23rd July, he alongwith one Rasheed, a trader, kept this assignation. They had arrivedat thfe spot at about 11.30 p.m. and the accused-respondent loadedseven bags of pepper into the car.Six of these bags were identifiedas gunny bags belonging to the deceased. A trail of pepper fromthe deceased persons’ house up to the Pinwatte bend was also found
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in the course of the Police investigations. There was evidence thatprior to the date' of the murders there had been 12 bags of pepperin the room occupied by Charlis Silva and his wife. It would beobserved that the number of bags loaded into Arnolis Appuhamy’staxi accounts for about half of the stock that was kept in the roomoccupied by the two deceased persons. -The Police did not find anymoney or a single item of jewellery or Valuables on the premises inthe course of their investigations.
In this context it may also be mentioned that it was the submissionof the defence that Arnolis should have been treated as an accompliceto the crime. Arnolis had falsely told Rashecd, the purchaser of thepepper, that the pepper belonged to Arnolis and to the Police thathe has had previous dealings with Rashecd. These statements wereflatly denied by Rashecd. The collection of the bags of pepper hadtaken place at mid-night at a lonely spot on the road and the deliveryhad been made by a person, attired in black, who emerged fromthe dark without a light. Arnolis had done two trips that night andhad carefully avoided taking the same route when coming and going.Arnolis was not paid a fare for the hire; nor is there evidence thatpayments were made for the sale of this pepper. It appears that thispepper was mixed with other pepper by Rashecd and quickly disposedof the next morning at a place 22 miles away from this spot.
According to Arnolis, the accused-respondent was wearing a blackcoat at the time he had loaded the pepper into the car. On thefollowing day the Police had recovered from the possession of theaccused-respondent a black coat and a pair of black shorts. Theblack coat was wet at the time of recovery and the black shorts hailstains of human blood.
The accused-respondent did not choose to enter the witness-boxand give evidence. He made a dock statement denying the chargeand stated that he did not know anything about this. As statedearlier, a suggestion had been made that the accused-respondentcould not have committed those offences single handed. The distancefrom the deceased persons’ house to the Pinwatte bend was about3/4th of a mile and the transport of 7 bags of pepper, presumablyone at a time, on this dark night would have taken about two hours.Dr Colvin R. de Silva strenuously argiicd- that the fact that Rasheedhad told the Police (and this statement was put to him by'the defence
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to attack his credibility) that there were two persons at the time thepepper was loaded into the taxi, should carry some substantive effectwhen considering the totality of the evidence. Counsel for theaccused-respondent also stressed the fact that, since the two deceasedpersons had not made any cries of distress, access to the house hadapparently been freely obtained and there is the strong probabilityof the intruder being a known person.
The Court of Appeal had summed-up this material in the followingwords
“There were indecipherable foot prints in the bedroom
where the bodies of the deceased were found. The evidencethat only one person committed these offences was not conclusive.According to Simon there were 12 bags of pepper inside thebedroom of the deceased couple on the day before they weremurdered. However, according to Rashccd only ft bags ofpepper had been delivered to his house on the 23rd night.What happened to the missing 6 bags? This crime involving adouble murder and a theft of 12 bags of pepper had to becommitted swiftly in order to avoid detection. Counsel suggestedthat it was incredible that only one person carried out theentire plan. It would have taken too much time and wouldhave defeated the object of committing the offence within theminimum time possible. Rashccd in his statement to the policehad stated that a very tall man helped to load the bags ofpepper into the car driven by Arnolis. Simon was an unusuallytall man and fitted this description and the police had failedto search his house or any other house in the vicinity for themissing bags of pepper. There were several houses close tothe deceased’s house. It was significant that not one neighbourheard cries for help. Hecn Banda the closest neighbour heard“Hoo!" shouts at about 8.30 p.m. 'There were 24 incisedinjuries on the deceased couple which indicated, assuming therewas only one assailant, that when one was being attacked theother had the opportunity of raising cries for help. The absenceof cries for help was an indication that the deceased couplewere overpowered by more than one assailant who stifled theircries for help. There were difficulties in the disposal of 12bags of pepper single handed as the time clement wait'vitalin this whole transaction. Learned counsel submitted that it
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was incredible that only one person would have carried outthe whole transaction as suggested by the prosecution.
Wc hold that there is merit in the above submissions andthat the learned trial Judge should have left it open to thejury to decide whether more Jhan one assailant participatedin the offence without withdrawing this important question offact from the consideration of the jury."
The Court of Appeal also criticised the trial Judge's conduct inwithdrawing from the jury the question whether or not Arnolis wastin accomplice.
In regard to P7, there was a suggestion by the defence that theseprints were a subsequent introduction. Much was made of the factthat the reference to P7 in f.P. Ratnavake's notes of inquiry is inthe form of an interpolation. The defence also drew the attentionof the court to the fact that in the sketches that had been sent tothe D.P.P., there is no marking showing the spot where P7 wasalleged to have been found. I.P. Ratnayake sought to explain thesediscrepancies and omissions and the learned trial Judge uuitc nropcrlvleft these matters for the eonsideiatrion Of the jury.
The foot prints P7 were the main items of evidence against theaccused-respondent and this has been stressed by the learned trialJudge at more than one place in his charge to the jury. I think Mr.Marapona. Additional Solicitor-General, is right when he submittedthat the prosecution did not rclv on the presumption arising from arecent possession of stolen property to prove the murders. There isno reference in the trial Judge’s charge to the presumption referredto in section 114(a).
The trial Judge, accepting the submissions of the prosecution, hadtaken the view that the two murders on the one hand and therobbery on the other formed one transaction. He appears to havedirected the jury to the effect that if the accused was found guiltyof robbery, his guilt as regards the murders would, as it were,automatically follow. He has said that
“The case for the prosecution is that the accused loadedpepper into Arnolis Appuhamys car and that the accused
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committed theft of hags of pepper belonging to Charlis Silvathat night and that the foot-print of the accused Was foundon a piece of paper marked P7; and therefore, this accusedwho loaded the car with pepper is the person who committedboth murders.”
The Court of Appeal however approached this matter somewhatdifferently. Upon a consideration of the totality of the evidence andthe inferences drawn from it, the Court of Appeal thought that thequestion whether or not the murders and the robbery took place atone and the same time and formed one transaction should have beenleft to the jury.
It is in this context that the Court of Appeal referred' to the caseof Somapala v. The Republic of Sri Lanka, 78 N.L.R. 183. Mr.Marapona's submission – if I understood him correctly – that Somapala'scase did not make any reference tb a case of robbery is not borneout by the dicta in that case. Dealing with the presumption arisingfrom recent possession of stolen property. Thambthcram, J., saidthat such a 'presumption does not lie to prove that “a murdercommitted in the same transaction was committed by the person whohad such possession”. He added-
“There is no presumptive proof of this. The burden still remainsto prove beyond reasonable doubt that the person who committedthe robbery did also commit the murder. All that the prosecutionhas established is that the accused was present at the time ofrobbery.”
When the Court of Appeal chose to follow the law as laid downin Somapala's case, it was undoubtedly aware of the decision in TheRepublic v. Karunapala, S.C. 228-229 decided on 23.1.79. There isalso a subsequent case. Abeysekera v. The Attorney-General, S.C.25/81,C.A. 47-52/79, H.C. Kurunegala 26/77, decided on 22.9.81, dealingwith this question.
It is therefore clear that there is a conflict of authorities in regardto the application of the presumption contained in section 114 andthe Attorney-General apparently thought that this was a fit occasionfor bringing up this matter for an authoritative ruling from us.
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In the petition for leave to appeal, the Attorney-General, afterreferring to Somapala's case, has quoted a passage from the judgmentof the Court of Appeal which reflects what Thamotheram,- J..' saidin Somapala’s case. The Attorney-General has submitted that' “theinterpretation placed on section 114 of the Evidence Ordinance iscompletely erroneous in law, having regard to a scries of judicialdecisions as well as the opinions of well-known text writers on thelaw of evidence.” This was the only substantial ground of law in thepetition of appeal.
Therefore, when this matter came for leave in the first instance -and I was a member of that Court – 1 for my part thought thateven though it was an appeal from an acquittal, the substantialquestion of law taken in the petition of appeal merited our intervention.Leave was accordingly granted.
It would also appear that subsequently the Additional SolicitorGeneral had met the Registrar and indicated to him that a largerbench would be necessary to hear this case since he was canvassingthe correctness of Somapala's case. It was in deference to this requestthat the Chief Justice thought it fit to constitute this divisional benchof five Judges to hear and determine the legal issue that was intendedto be canvassed in this case.
Unfortunately, this legal question which is the only issue for ourconsideration has been abandoned or at least not been argued atthe present hearing. Mr Marapona, Addl. Solicitor General, who hastaken over this appeal from his predecessor has sought to argue thisappeal on an entirely different footing. He appears to have a morerealistic appreciation as to where the strength of his case lies andhas very skilfully made out a strong case on the facts as to thecorrectness of the verdict of the jury which, he states, should nowbe restored. ••
In my view the question as to the correctness of Somapala's casewas the basis on which we granted leave. That legal issue was oneof the contentions before the Court of Appeal and appears to befounded on statements made by the trial Judge. This then was theonly matter which this Court was called upon to decide and not anyother question.
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Since the sole legal issue submitted for our consideration has notbeen argued, the appeal must necessarily fail. But I do not wish toallow the matter to rest there. If it were necessary to consider MrMarapona’s submissions on the facts, we would equally have to takeinto account Dr Colvin R. de Silva’s arguments. Dr de Silva hasdrawn our attention to at least two serious misdirections in thelearned trial Judge’s charge to the jury which, he says, are alonesufficient to invalidate the convictions. Viewed in that light, this isa matter in which I would not have in the first instance given leaveto appeal from the acquittal except on the legal issue concerningSomapala's case, nor was the case presented to us in the manner itis being done now. Having listened to the arguments of counsel, Iam confirmed in my view that this appeal ought not to be allowedon the matters that have been argued before us. For these reasons1 would dismiss the appeal, making no pronouncement on any ofthe matters touched on by counsel which strictly does not arise fordetermination before this Divisional Bench.
RATWATTE, J.
I agree with Wanasundera, J. for the reasons stated by him thatthis appeal ought not to be allowed on the matters that have beenargued before us. I would accordingly dismiss the appeal.
SOZA J:-
I have had the privilege of reading in draft the judgment proposedby Weeraratne A.C.J. I agree with it. Yet, I would like to state myown views on the matters argued before us.
The respondent to this appeal was indicted before the High Courtof Kandy on two counts of murder of a person called G.P. CharlisSilva and his wife Scelawathie Weeraratne and one count of robberyof a quantity of pepper valued at Rs. 1,400/- from the possessionof the said Charlis Silva. The offences were alleged to have beencommitted on the night of 23rd of July 1973 at a place calledKoswatte which is about three miles from the Talatuoya Town wherethe nearest Police Station is.
Charlis Silva and his wife Seelawathie were about 58 years and53 years old respectively according to the medical evidence. They
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were the only occupants of their house which consisted of two foomsand a kitchen all of which according to the sketch filed of recordopened into a verandah. There was no other access to the roomsor the kitchen and no means of access internally between the tworooms. Charlis and Seclawathie used one of the rooms as a bedroom.When they were in they secured the only door which served aSaccess to this room with a crossbar. Whenever they had occasion toleave this room they padlocked it from outside. Inside this roomthere was a stock of pepper in 12 bags. The house stood on a landof about 22 acres in extent planted with various crops like pepper,cocoa and coconut. One V.H.G. Simon worked on the land as alabourer for Charlis during the day between 7.00 a.m. and 4.30 p.m.About 5 years prior to the date of the incident of this case therespondent (hereafter referred to as the accused) had cultivatedvegetables on this land.
The prosecution case was that on the night of 23rd July 1973 theaccused gained entry to the room occupied by the two deceasedpersons, killed them with a heavy cutting weapon and robbed thebagged pepper which was in the room. The accused sold this pepperon the same night to one M.Y. Rashccd a merchant through oneA.K. Arnolis Appuhamy a hiring car driver. The pepper was deliveredat a spot on the main road known as the Pinawatta bend some threequarters of a mile away from the house of the deceased. The deceasedcouple were last seen alive by Simon when he left after work about4.30 p.m. on 23rd July 1973. On the following morning when Simonreported for work he found the room occupied by the deceasedcouple padlocked from outside. There was pepper strewn on theverandah and there were no signs of the inmates. His suspicionswere aroused and he reported the matter to Charlis Silva’s brotherJuwanis who too went over and had a look. Together they informedthe Police.
As a result of the Police investigations the prosecution was ableto place the following main items of evidence against the accused
Tw<r footprints in human blood of the left leg of the accusedwere identified on a copy of the Dinamina of the 23rd July 1973found inside the room where the two deceased persons lay dead ina pool of blood.
On a statement made by the accused the Police recovered
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from the gutter of the house of the deceased the bunch of keysidentified by the witness Simon as belonging to the deceased persons.
From the house of the accused was recovered a black coatstill wet suggesting recent washing and a pair of black short trouserson which there were human blood stains.
The Police saw a trail of pepper leading from the house ofthe deceased to the Pinwatte bend where the pepper was deliveredaround midnight on the night of 23rd July.
" 5. The sale and delivery of the pepper were by prior arrangementmade by the accused with Arnolis Silva a taxi driver.
The accused was identified at the delivery point at the Pinwattebend by Arnolis Silva. At that time the accused was clad in a black coat.
Rasheed saw an unidentified person dressed in black loadingthe pepper into the car.
These items of evidence were attacked by the defence on severalgrounds but after trial the Jury by a unanimous verdict found theaccused guilty on all three counts. The accused was thereuponconvicted and sentenced to death on the first two counts of murderand to ten years rigorous imprisonment on the third count of robbery.
The accused appealed to the Court of Appeal which set aside theconvictions and sentences onthe two counts of murder but allowedthe conviction and sentence on the third count to stand. TheAttorney-General applied to the Court of Appeal for leave to appealto the Supreme Court but leave was refused. Thereafter theAttorney-General applied for special leave to appeal to the SupremeCourt. This was granted and the present bench of five Judges of theSupreme Court was constituted to hear the appeal. The grounds setout in the petition seeking leave to appeal may be summarised as"fbllbws:- 1 2
1.The acquittal of the accused on the charges of murder isinconsistent with the conviction of the accused on the charge of robbery.
2.The Court of Appeal has set aside the conviction on thecharges of murder by assuming the functions of the Jury in thematter of assessing facts and on certain matters by even going furtherand speculating on them. The Court thus held that the possibilitythat the footprints at the scene had been left some time after themurder, was' not eliminated. Since there was a time gap of 2 1/2 to3 hours between the time of death and the time of delivery of the
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.SC
pepper bags, there was no conclusive evidence that the murders androbbery were committed in the course of the same transaction.Further there was substance in the contention that more than oneassailant participated in committing the offences.
The decision in Somapalu r The Republic1 has been misappliedin the interpretation of s. 114 of the Evidence Ordinance.
The Court of Appeal while declaring that the withdrawal fromthe jury of the question whether Arnolis was an accomplice waswrong held that this did not prejudice the substantial rights of theaccused or occasion a failure of justice on the charge of robbery.The latter consideration applies equally to the charges of murder.
I should add here that a bench of five Judges was constitutedbecause there was the question whether the decision in Somapala'scase was right. The argument before us was not confined to this.No limitations in fact have been stated in the order granting specialleave. The question then arises whether it is open to us to considerthe matters complained of in the petition of appeal.
The appellate jurisdiction of the Supreme Court has been conferredupon it by Article 127 of the Constitution of 1978. By subsection 1of this Article the Supreme Court is the final Court of civil andcriminal appellate jurisdiction for the correction of all errors in factor in law which may be committed by the Court of Appeal or anyCourt of First Instance, tribunal or other institution. So far as appealsfrom the Court of Appeal go. by subsection 2, the Supreme Courtin the exercise of its jurisdiction has sole and exclusive cognizanceby way of appeal from any order, judgment, decree or sentencemade by the Court of Appeal where any appeal lies in law to theSupreme Court and it may affirm reverse or vary any such order,judgment, decree or sentence of the Court of Appeal and even issuedirections to the Court of Appeal to record fresh or additionalevidence if the interests of justice so demand.
When does an appeal lie in law to the Supreme Court from adecision or order of the Court of Appeal? The answer is found inArticle 128:
1. If the Court of Appeal grants leave to appeal from a finalorder, judgment, decree or sentence made by it .on any matter orproceedings whether Civil or criminal, which involves a substantialquestion of law (subsection 1).
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2. If the Supreme Court in its discretion grants special leave toappeal from any final or interlocutory order, judgment, decree orsentence made by the Court of Appeal in.any matter or proceedings,whether civil or criminal, where
the Court of Appeal has refused to grant leave to appealto the Supreme Court, or
in the opinion of the Supreme Court, the case or matteris fit for review by it (subsection 2).
The Supreme Court must grant leave to appeal in every matteror proceedings in which it is satisfied that the question to be decidedis of public or general importance (proviso to subsection 2). It mightbe added that an appeal shall lie directly to the Supreme Courtwhere it is specifically so provided by statute (subsection 4).
It will be seen that it is only when the Court of Appeal grants leaveto appeal, that the appeal is confined to substantial questions of law.When the Supreme Court in its discretion grants special leave toappeal the scope of review is not limited to substantial questions oflaw. It must be remembered that the Supreme Court has jurisdictionto correct errors of fact or law committed by any Court. An occasionfor the exercise of this jurisdiction is when it grants special leave toappeal. So when the Supreme Court grants special leave it is opento if to review the case so far as it is pertinent to the question tohe decided. Accordingly I am of the view that in the instant casethis Court should consider the matters complained of in the petitionof appeal as well as matters raised at the hearing before it on behalfof the accused.
I will take first the question regarding the participation of morethan one assailant. It is wrong to say that this question was not putto the jury. The trial judge invited the Jury to consider the defencesuggestion that more than one assailant would have participated inthe attack when he was discussing the medical evidence. The questionthen was before the jury though of course there was no referencein this context to the number of indecipherable footprints found atthe scene or the difficulties and time factor involved if one personrobbed and transported the large quantity of pepper stolen.
Reference should also be made here to an argument advanced bylearned senior Counsel for the accused concerning two contradictions
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marked D7 and D8 from the statement made by witness Kashcedto the Police on the day after the incident. Rasheed had told thePolice that two persons brought two bags of pepper to the ear andthat two tall persons wearing black put the two pepper bags intothe car but his evidence in court is that there was only one person.It is well established that the jury should decide firstly whether thewitness whose testimony is being impugned did in fact make theprevious statement attributed to him and if so. whether it is truly acontradiction of his evidence in court and then how far it wouldaffect the credibility of his evidence. The contradiction is not to betreated as substantive evidence – see for instance The Queen vKularatne
Learned senior Counsel for the accused submitted that the juryshould also have been asked to consider the fact that such a statementof such contents was made, irrespective of its truth, as a circumstanceto be taken into account in evaluating the other evidence regardingwhether more than one person took part. I lie fact that a statementof such contents was made irrespective of whether it is true or notis a circumstance which should be fitted into the evidential picture,[.earned senior Counsel for the accused sought to derive support forthis proposition from the decision in the ease of Kunmaratne »' TheStated. This was a case where the accused was charged with criminalbreach of trust. The proscctuion sought to prove a previous falsestatement made by the accused. Rajaratnam .1 held that in thisconnection two matters arise for consideration, namely.
the truth of the contents of the statement
the fact that such a statement' was made bv the accused.
Here the Court was considering a previous statement of the accused
as an item of substantive evidence under s.S of the Lvidence Ordinance.The conduct of the accused in making a statement that was revealedto be false was held to point the finger of guilt to the accused. Butthe previous statement of witness Rasheed is not an item of substantiveevidence. The use to which such a previous contradictory statementcould be put is limited to the impcaching of the credibility of hisevidence in court. I can see no reason to extend the principleemployed in Kamnaratne (supra) to such contradictions as D7 or DNwhich do not constitute substantive evidence but have been used inaccordance with the provisions of section 155 (e) of the Hvidence'Ordinance (and section 110 (3) of the Code of Criminal ProcedureAct No. 15 of 1979.)
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Although the significance of the indecipherable footprints at thescene and of the quantity of pepper and its transport and deliverywas not specifically put to the jury on the question of the possibilityof there having been more thai. one assailant, the evidence itself onthese matters was generally placed before the jury who in connectionwith the medical evidence had already been invited to consider thesuggestion that there was more that one assailant. Further the jurywere repeatedly told that what they had to decide was whether theaccused alone committed the offences or not. Taking the questionas a whole I cannot agree that there has been such a seriousnon-direction on this point as to amount to a misdirection.
In passing I would like to refer to the allegation of the defencethat Simon was the perpetrator of these offences. The trial judgedismissed this suggestion as fanciful. Learned senior Counsel for theaccused contended that the trial judge was wrong irt so lightlydismissing the allegation that Simon was the killer, especially in viewof Rasheed’s evidence that a tall man 6 or 6 1/2 feet in height helpedto load the pepper. The physical description fitted Simon. Referringto the suggestion that Simon was the killer the trial judge also toldthe jury that they could form their own opinion on the matter. Adecision on the question was entirely theirs. Earlier they had beentold they were the sole judges of questions of fact and they werenot bound by the judge’s opinion though they should give it dueconsideration. Further Simon was a witness and gave evidence fromthe witness box. He was cross-examined by the defence. Not a singlequestion even remotely suggesting he was the killer was put to him.In these circumstances the comment of the trial Judge on the questioncannot be regarded as improper.
The second ground on which the Court of Appeal interfered withthe verdict of the jury on the charges of murder is the omission ofthe learned trial judge to ask the jury to consider whether the murderand the robbery took place in one and the same transaction or not.The learned trial Judge told the jury that the three charges againstthe accused had been included in one indictment because the allegationof the prosecution was that the murders and robbery had beencommitted in one and the same transaction. If the charge of murderon Count 1 failed then the other two charges too would fail. Thecase on the three charges stood together or fell together. In otherwords the case for the prosecution would fail if it was not proved
SCAttorney-General r. ScnreirntncJ.l327
that the offences were committed in one and the same transaction.The complaint is that the possibility of the murders and rohbervbeing separated by a time; gap of 2 1/2 to .3 hours should have beenput before the jury. It is not the prosecution case that the robberywas committed at or about the time when the pepper bags weredelivered to Rashccd at the Pinwatle bend. The prosecution case isthat the murders and the robbery were committed by one and thesame person, at the same time, at the same place, namely, the houseof Charlis Silva. The jury were told that if they cannot so find theyshould acquit. The jury had before them the evidence of whathappened at the Pinwatte bend and their attention was drawn to theimportance of the time of delivery of'the pepp'eroand the quantityand the contradictions on these matters. -The jury were also invitedto compare this evidence with the evidence on the time of death. Althoughthe jury were not told; specifically to consider the offence of robberyseparately, from the murders still all the relevant'items of evidencewere before them and-they were directed to find whether all threeoffences were committed in.one transaction and to acquit the accusedif even one was not. This approach could hardly be said to haveprejudiced the accused.
I will now deal with the question whether witnesses Arnolis andRashced should have been treated as accomplices. I would like toobserve that the Court of Appeal took the view that no prejudicehad been caused to the accused so far as the charge of robberywent by the withdrawal from the Jury of the question whether Arnoliswas an accomplice or not. It is hard to see how the allegednon-direction did not prejudice the accused on the charge of robberybut prejudiced him on the charges of murder.
Be that as it may, the question is whether on the evidence beforethe jury Arnolis and Rashced could be treated as accomplices. Fromthe cases three main definitions can be formulated:
An accomplice witness is one who could have been convictedof the actual offence with which the accused is charged as a principal.
An accomplice witness is one who could have been convictedof the actual offence with which the accused is charged whether asprincipal, aider and abettor, or counsellor. This test is adopted inSri Lanka and in some other jurisdictions. In England the House ofLords held that on the existing case law the term accomplices includes
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accessories after the fact and by an extended application receiversof stolen goods on the trial of the thief, and parties to other crimes(of a type identical with the crime charged against the accused) whenevidence to prove system and intent and to negative accident issought to be led – sec the speech of Lord Simonds L.C. in Daviesv Director of Public ProsecutionsIn Sri Lanka Basnayake .1 (laterC.J.) in Peiris v Dole^ and Jayatileke J (later C.J.) in The King vPiyasencfi adopted the definition of O'Sullivan A.J.C. in ChetumalRekumal v Emperor^ that an accomplice is a guilty associate in crimeor one who sustains such a relation to the criminal act that he couldbe jointly charged with the accused.
An accomplice witness is one whose liability to prosecutionarises from the same facts as that of the principal offender.
The English Criminal Law .Revision Committee have recommendedthe adoption of the third definition in preference to the second. Sofar as the corroboration warning goes they support the view that itshould be made a matter of discretion and practice. This would makethe omission of the warning not- necessarily fatal to a convictionprovided corroboration in fact exists or the accomplice’s evidence issufficiently reliable to act on without corroboration. Accompliceevidence after all is not necessarily always dangerous and it isinadvisable to have a general rule operating more extensively thanthe mischief it is trying to cure – sec the discussion in J.D. Hcydons'sarticle on “The Corroboration of-“Accomplices" (1973) Critrv. L.R.264 and the llth Report on Evidence-(General) 1972 of the EnglishCriminal Law Revision Committee Cmnd 4991 paras 183 –l 85. Theapproach recommended by the- English Criminal Law ’RevisionCommittee is worthy of consideration in an appropriate case. In theinstant case however the question is whether Arnolis and Rashcedare accomplices at all. This question can be disposed of by theapplication of existing tests. Glanvillc Williams in his Textbook ofCriminal Law (1978) p. 285 defines accomplices as parties in differentdegree of complicity to a crime and adds “Accomplices consist ofthe perpetrator and the accessories”. This indeed is the primary andnatural meaning of the term. The perpetrator is the person who inlaw commits the offence. A person who incites or helps the commissionof an offence by the perpetrator is an accessory. But help givenafter the commission of the crime does not make the helper anaccomplice – Glanvillc Williams (ibid) p. 290
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While a co-perpetrator and an accessory before the fact clearly,are accomplices, an accessory after the fact isnot necessarily always;so. The principal danger in the evidence of an accomplice is that he;may be tempted to purchase immunity by currying favour with; the-prosecution and implicating another while reducing his own role inthe offence. But no such danger exists in the case of. an accessory,after the fact. Indeed the interest of an accessory after the factshould be to establish the innocence of the principal offender not his guilt.
The expression accomplice should be confined to the natural andprimary meaning of perpetrators and accessories. The test whichBasnayake J. adopted in Peiries v Dole (supra) is that an accompliceis one who is a guilty associate in crime or who .sustains, such arelation to the criminal act that he could be charged jointly with theaccused needs modification. An accomplice no doubt is a guiltyassociate in crime but the test that he should be chargeable with thesame offence is not always suitable for general application.
There'' may be occasions when an accomplice though a particepscriminis cannot be charged with the same offence. His guilty participationmay not go far enough for this. Further it docs often occur that anaccused person though.' charged with a particular offence is foundguilty only of a lesser or kindred offence. More properly thereforean accomplice is a guilty associate whether as perpetrator or inciteror helper in the commission of the criminal acts constituting theoffence charged or a lesser or kindred offence of which the accusedcould be found guilty on the same indictment.
In the instant case there was no robbery at the Pinwatte bend.The murders and robbery had taken place at Koswatte ipsidc theroom where the bleeding bodies of Charlis and Seelawathie lay.There is no evidence that Arnolis or Rashccd did anything at Koswattein the room which was the scene of the murders and robbery.. Thc;rcarc no positive proved facts from which it could be inferred thjrtArnolis or Rashced were accomplices. Therefore the method ,ofinference fails and what is left is. mere speculation and conjecture..Accordingly I do not think the learned trial Judge could be faultedfor not advising the Jury on accomplice evidence.
Now to the question of the application Of presumptions under
section 114 of the Evidence Ordinance arid the decision in Don! . . …
Somapala v Republic of Sri Lanka (supral. 1 nriist confess 1 am
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baffled at how this question came to be raised at all. The judgereferred to no presumptions in his summing up. He did not invitethe jury to act on any presumptions to the prejudice of the accused.No presumptions assisting the prosecution to discharge its evidentialburden were referred to. The judge placed the persuasive burden,the burden of proving its. case, beyond reasonable doubt fairly andsquarely on the prosecution. And Lean therefore see no cause forcomplaint by the accused and no occasion or necessity to reviewSomapala or even refer to section 114 of the Evidence Ordinance.
Before I part with this question however I would like to refer tothe fact that the learned trial Judge delivered his summing- up tothe Jury in Sinhala. For the purpose of making submissions beforeus an English translation (not always as accurate as desirable) of thesumming-up was used both before us and before the Court of Appeal.The English translation records the trial Judge as having told the jury:
“When a strong prima facie case is made out against the
accused, there is a duty on the accused to explain certain matters.”
The learned Judge did not use the expression “strong prima faciecase”. In fact the Sinhalese words he used could more properly betranslated “ a case strongly pointing the finger of guilt against theaccused”. In any £vent in the circumstances of this case casting aburden to explain on the. accused when there are such items ofevidence as two footprints of his in human blood at the scene andstains of human blood on his trousers as distinguished from apersuasive burden of proof was not at all improper. Where thereare special circumstances which only the accused can explain andwhich call for an explanation from him, there is an evidential burdenon him – see the decisions in The King v Geekiyanage John Silvcfiand Albert Singho v The QueenP. In no part of his summing up didthe learned trial Judge shift the persuasive burden of proof, that is,the burden of proving charges beyond reasonable doubt, from theprosecution. The trial judge’s comments on the failure of the accusedto offer an explanation regarding the circumstances which neededexplanation from him are unexceptionable.
There is one last matter remaining to be commented upon. LearnedSenior Counsel for the accused submitted that there were misdirectionsin the summing-up on the question of circumstantial evidence. It was
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pointed out that the learned trial Judge had told the jury to evaluatethe items of circumstantial evidence separately and to see if the itemsof evidence consistent only with the guilt of the accused on a totalitycould be held to establish beyond reasonable doubt that the accusedis guilty of the offences. In this way the effect-'rif the items ofevidence in favour of the accused on the whole prosecution case wasnegatived. These comments however were made by the learned trialJudge in the course of inviting the jury to weigh each item ofcircumstantial evidence. But he did instruct the jury that the wholeof the evidence must be assessed and a verdict of guilty returnedonly if the conclusion was irresistible that the accused was guilty.After likening the items of circumstantial evidence to links in a' chainthe judge said:
After completing the chain, it must necessarily point to theirresistible inference of the guilt of the accused."
And again he said:■ • ••
“Gentlemen, you must be able to come to an inference beyondreasonable doubt that having taken all the circumstances as awhole, that the only decision you can arrive at is that theaccused is guilty and that it is the accused who committed theoffence.” I
I think these passages sufficiently answer the point that hasbeen taken.
This is not a case where the verdict .of the jury could becharacterised as unreasonable. It certainly cannot be-Said thatthe substantial rights of the accused have been prejudiced orthat a failure of justice has been occasioned. The accused hadleft two of his footprints in human blood at the scene, he hadstains of human blood on his .black trousers, he knew wherethe keys were of the padlocked house where Charlis and hiswife lay murdered and there ,was the..tell-tale trail' of pepperfrom the scene of the murder to the.Pinwattc bend where theaccused disposed of the stolen peppt'r.'in-the face of all thistelling evidence it would indeed be a strain on human experienceto accept that the accused found the way fortuitously madeclear for his operation robbery, by the prior murder by someoneelse of the aging Charlis Silva and his wife.
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Sri Lanka Law Reports
(1982f l S L R
• I therefore allow this appeal and make order setting asidethe judgment of the Court of Appeal in respect of the chargesof murder and restoring the verdict of the jury on these chargesand the sentence of death passed by the learned trial Judgeon the basis of this verdict. In regard to the charge of robbery,the conviction and sentence entered by the High Court andaffirmed by the Court of Appeal will stand.
Appeal allowedReferences:
(1075) 78 NLR 183.
(1968) 71 NLR 439.
(1975) 78 NLR 413.
(1954) AC 378
(1948) 49 NLR 142
(1948) 49 NLR 389
(1934) AIR Sind 185. 187
«• (1945) 4ft NLR 73.
9. (1969) 74 NLR 368.