D. D. THEMIS, Appellant, and THE QUEEN, Respondent

152-NLR-NLR-V-55-D.-D.-THEMIS-Appellant-and-THE-QUEEN-Respondent.pdf

Themis v. The Queen
541
[Court of Criminal Appeal]
9 ^
1954 Present: Nagalingam A.C.J. (President), Pulle J. andWeerasooriya J.D.^ D. THEMIS, Appellant, and THE QUEEN, RespondentApplication No. 27 of 1954S. C. 9—M. C. Kalutara, 18,826''rial before Supreme Court—Jury are sole judges of fact—Requirement of such directionin sumr. ling -up—Charge of murder—Duty of Judge to place before Jury everypossible defence.
In. a ferial before tbe Supreme Court it is the duty of the Judge to caution theJury that any views he may express on questions of fact are not to be regardedas binding upon them and that they are the sole judges of fact. *
In a trial for uyirder, the fact that the accused or his Counsel does not advertto a possible plea of private defence that may reasonably be said to arise uponthe facts does not relieve the Judge from the duty imposed upon him of placingit before the Jury in his summing-up.
642
MAGALINGAM A.C.J.—Themis o. The Queen
Application for leave to appeal from a conviction in aetrial beforethe Supreme Court.
Wesley D. Thcumotheram, for the accused appellant.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 5, 1954. Nagaltmgam A.C.J.—
This is an appeal from a conviction for murder, based upon groundsof non-direction amounting- to misdirection. The prisoner and twoothers were indicted upon a charge of murder. The latter were acquitted,while the former was convicted and sentence of death was passed on him.In a very lucid and careful charge the learned Commissioner presentedthe case to the jury, and the charge, so far as it goes, is be^ofid criticism.
Two points have been raised by counsel for the appellant in that thecharge does not go far enough in that the learned Commissioner failedto caution the Jury that any views he may express on questions of factare not to be regarded as binding upon them and that they were the solejudges of fact, and secondly that the plea of private defence which aroseon the evidence in the case was not placed before them.
To deal with the second point first, the defence of the prisoner asdisclosed in his evidence showed that the deceased womap. had abusedand attacked him by delivering a blow with her fist on his face whichloosened one of his teeth and not content with that act she proceededto get hold of Trim by his testicles and squeezed them so hard that he feltexcruciating pain and that she dragged him in that way causing un-bearable pain ; that he in order to release himself from her mortal holdwaved a knife which was handy on his person as a result of which thedeceased came by her death.
It was conceded at the argument that Counsel for the defencef did nothimself attempt to rely upon any plea of self defence, nor does it appearthat Crown Counsel himself adverted to the possibility of Such a defence-arising upon the facts established. Counsel for the defence confinedhimself to putting forward the mitigatory plea of grave and suddenprovocation. The learned Commissioner dealt with this plea himselfbut failed to direct the attention of the Jury that the plea of self-defencewas one.that arose on the facts as presented by the prisoner. The factthat the prisoner or bis Counsel does not advert to a possible defencethat arises upon the facts does not absolve or relieve a Judge from theduty imposed upon him by law of placing before the Jury every aspectof the case, including every possible defence that may reasonably besaid to arise upon the facts disclosed at the trial. Quite recently thisCourt had occasion to make a pronouncement on this topic in the case of
JJABAT.TN’flAM A.C.J.—Themis v. The Queen
543
Murugesu 1 where on analogous facts the trial Judge dealt in his sum-ming up ■&4th the plea of self defence but failed to direct the Juryadequately on the plea of grave and sudden provocation which arose on apossible view of the facts. In that case the learned trial Judge dismissedthe whole plea of grave and sudden provocation with one sentence.This Cbtirt held that that direction was inadequate and altered the verdictfrom one of murder to one of culpable homicide not amounting to murder.We think that the non-direction in regard to the plea of self defence that‘evidently arises in this case amounts to a misdirection.
There remains for consideration the first point submitted by learnedCounsel for the appellant. The learned Commissioner at no stage of hissumming up brought home to the minds of the Jurors that they werethe sole judges of the facts and that though he himself may express anyopinion on questions of fact they were not bound by his views on suchquestions of fact and that it was entirely a matter within the specialprovince of the Jury to determine whether they would take a particularview or not of the facts. That the learned Commissioner did, as un-doubtedly he is entitled to, express his views and give indications of theviews he "had formed on questions of fact is plain from a reading of thesumming up. In fact in this case the learned Commissioner had expresslydirected the Jury to bring in a verdict of not guilty against the 2nd and3rd accused, and when in dealing with the case against the prisoner heexpressed his own opinions on questions of fact and disclosed how hismind was working, though on more than one occasion he told them thatthey must be satisfied in regard to the facts necessary to be established,the criticism that the Jurors may have felt themselves bound by theopinion expressed by the Judge in the absence of a specific caution to thecontrary is a griticism that cannot be lightly repelled.
The Court of Criminal Appeal in England in the case of FrederickMason 2 allowed the appeal of a prisoner on the ground that when thetrial Judge, while in the course of his summing up said, “ I invite you totake such and such a course ”, that was sufficient to amount to a mis-direction in the absence of an accompanying direction that the right ofdeciding on the facts was solely theirs. Lord Hewart C. J. in deliveringjudgment expressed himself thus :
“ Iif the present case there is reason to apprehend that with regardto both the acceptance of certain evidence and the finding in thatevidence of corroboration of other evidence the Jury may not havebeen left sufficiently clearly in the belief that the responsibility wastheirs. ”
In this case, as observed earlier, there was no indication whatsoevergiven to the Jury that the determination of questions of fact was Solelyfor them and that they were not under any duty of feeling obliged toaccept the view of the Commissioner on questions of fact. We are there-fore of opinion that the non-direction with regard to the functions of the
Jury is also a misdirection.
1 11961) 53 N. L. It. 469.a
(1924) 18 C. A. X. 131.
544
Si/rimala, Veda v. Siripala
We have given anxious consideration as to what the order is that weshould make in this case, and we think that upon a true vievS1- the properorder to make is to set aside the conviction and to order a new trial,which we do.
.New trial ordered.
Cur. adv. twit.