097-NLR-NLR-V-75-E-ALFRED-DE-ZOYSAS-and-2-others-Appellants-and-THE-QUEEN-Respondent.pdf
534
de Zoyea «. The Queen
[Court of Criminal Appear]
1971 Present: H. N. G. Fernando, C.J. (President), Slrlmane, J.,and Alles, J.E. ALFRED DE ZOYSA and 2 others, Appellants, and THE QUEEN,RespondentC. C. A. Nos. 43-45 of 1970, with' Application Nos. 68-70S. C. 135/68—M. C. Anuradhapura, 19471
Trial before Supreme Court—Summing-up—Evidence of bad character of accused—Eon-direction as to effect of it—Burden of proof—Statutory statement of accused—Misdirection as to whether falsehoods in that statement could strengthen thecase against the accused—Counteracting correct direction—Absence ofmiscarriage of justice—Question whether accused “ were deprived of the substanceof a fair trial".
The three appellants were convioted of conspiracy to commit murder. The2nd and 3rd appellants were also convioted of murder, and the 1st appellantof abetment of that murder.
H. N. G. FERNANDO,'C.J.—de Zoyaa v. The Queen
63a
Certain items of evidence odduced by the prosecution which were relevantto establish motive and to explain the circumstances in which the allegedoffences of conspiracy and murdor came to be committed by the appellantsshowed at the same time that the appellants were persons of bad character.The trial Judge omitted to warn the Jury that the character of the accusedshould not be taken into account in tho consideration of the question whetherthey were guilty of the charges' in the present case. Nevertheless, in othercontexts, the Judge did instruct the Jury with emphasis that inferences adverseto the acoused should not be drawn from evidence showing them to be personsof bad character.
It was also evident that the statutory statement which the 1st accused hadmade to the Magistrate in the course of the non-summary proceedings containeda series of denials of some of the facts to which prosecution witnesses hadtestified. The trial Judge misdirected the Jury that if they were satisfiedthat the accused had told deliberate lies in that statement, thon that was a 'matter which would strengthen the case against him. Despite this misdireotionin regard to the burden of proof, the Judge stated more than once that, if theJury did believe the prosecution witnesses beyond reasonable doubt on certainmaterial points, the deliberate lies of the 1st accused on these same pointsstrengthened the prosecution cose.
field, that the aforesaid non-direction and misdirection were not bo materialas to justify an opinion that the appellants were deprived of the substance of afair triaL
APPEAL against three convictions at a trial before the Supreme Court.
E. F. N. Oratiaen, Q.C., with A. H. C. de Silva, Q.O., Sunil E. Rodrigo,Ananda WijeseJcera, K. Sivananthan and J. W. Fernando (assigned),for the 1st Accused-Appellant.
A. G.de Zoysa, with Sunil E. Rodrigo, Sidat Sri Nandalochana, I. 8.de Silva, Juetin Perera, M. M. Been, B. B. D. Fernando, Amara Wellappili,Neville Jayawardene and J. W. Fernando (assigned), for the 2nd and3rd Accused-Appellants.
P.Colin Thome, Senior Crown Counsel, with Banjit Abeyauriya,K. Ratnesar and Tilak Marapana, for the Crown.
'Cur. adv. tmix.
April 5, 1971. H. N. G. Febnando, C.J.—
The three Appellants in this case appealed against their convictionson the first three counts of an indictment charging—
that the three of them conspired to commit the murder of one
P. K. D. Perera;
that the 2nd and 3rd Appellants, together with another committed
the murder of P. K. D. Perera ;
that the 1st Appellant abetted the murder charged in Count 2.
038
S. N. G. FKJtNANDQ, O.J.’—de Zoyao v. 5TAe Quttn
The remaining counts of the indictment related to the alleged murderof one Sandaraaagara, but none of the Appellants were convicted onany of those counts. No point was taken during the argument of tbiBappeal that there had been any misjoinder of oharges, or that the joinderof the remaining charges and the leading of evidence pertinent to themhad been prejudicial to any of the Appellants in respect of their trialon the first three charges. Wo nevertheless gave some considerationto this point. In our opinion, the verdiot of acquittal on tho remainingcounts dearly established that the Jury resisted what might have beenthe natural inclination to utilise the gravo conclusions on tho first threecounts, when they eamo to consider tho remaining counts. We aresatisfied that equally the conclusions on the first three counts were notinfluenced by any opinions adverse to the Appellants which the Jurymight have formed upon evidence pertinent only to the remainingcounts.
The gravamen of the principal complaint made, both by Mr. Gratiaenon behalf of the 1st Appellant, and by Mr. do Zoysa on behalf of the othertwo Appellants, was that in the language of Lord Devlin in the oase ofBroadhurat v. The Queen1 (1964 A. 0. 441), the Appellants " were deprivod .of the substanoe of a fair trial
The appellant in that case, who was charged with the wilful murderof his wife, was unanimously acquitted of that charge, but was oonviotedof oausing grievous bodily harm by a divided verdiot. The verdictclearly involved a finding by the majority of the Jury that the appellanthad deliberately thrown or pushed his wife down the stairs which gaveaccess to the Ilat ocoupied by the couple. This despite the completelack of evidenoe showing a motive for suoh an assault. There was insteadevidence that the appellant and his wife had been an affectionate oouple,although they had displayed an unusual propensity for “ sky-larking ”,in the oourse of whioh they used-to chase and thump one another.
The appellant testified at the trial that he and his wife had been at aparty from whioh the wife returned home alone. He himself had severaldrinks at the party and left the party later, and he oould rememberBorne incident whioh took plaoe while he was on his way home.Thereafter, he said, he remembered nothing except that at some stagehe saw his wife lying injured on the landing of the stair-case of theirFlat. He carried her up to the Flat, and then called for help from theneighbours, a couple named Mokinnel.
It will be seen that the appellant did not himself testify that his wife’sfall down the stairs had been caused either deliberately or involuntarily byhimself, or accidentally in circumstances for which, he was notresponsible.His position at the trial was simply that he did not know how she hadfallen.
> (1964) A. O. 441.
H. N. G. FERNANDO, C.J.—de Zoyta v. The Queen
637
The majority verdict of the Jury, involving the finding that theappellant did throw or push his wife down the stairs deliberatelydepended entirely on the evidence of Mr. and Mrs. Mckinnel, whotestified both to physical sounds and words which they claimed to haveheard, and to an admission made by the Appellant that ho had “ thrown ”his wife down the stairs. That vital testimony was assailed on twogrounds, the first that Mckinnel had after the incident made a remark“ I hope he (the appellant) will hang ”, and that he was a biassed witnessfor this reason; and secondly, that the evidence of “ sky-larking ”supported a possibility either that the appellant had pushed his wifeinvoluntarily or that she had fallen down the stairs accidentally.
In our understanding, the conclusion of Their Lordships of the PrfryCouncil that Broadhurst had been deprived of the substance of a fairtrial depended principally on the following matters :—
The defence adduced the evidence of a witness Barker, thatMckinnel did made the remark attributed to him, and thisevidence was “ conclusively corroborated ” by a reluctantadmission made in cross-examination by Mrs. Mckinnel.Nevertheless the trial Judge presented Mckinnel to the Jury asbeing more credit-worthy than Barker, despite the proof thatMckinnel had deliberately lied in Court when he persistentlydenied having made the remark. Moreover, the trial Judgeexpressed his firm opinion that the alleged remark had been madejokingly, although that explanation did not appear from theevidence of either Barker or the Mckinnels.
<(2) The trial Judge virtually withdrew from the Jury’s considerationthe possible verdicts of involuntary homicide or accident,despite the fact that the circumstantial evidence may wellhave justified such a verdict. Instead the Judge stronglyindicated his own opinion that the case was one of wilfulhomicide.
>(3) It was “ quite incorrect ’’ for the trial Judge to direct the Jurythat loss, of memory was the appellant’s substantial defence,when in fact loss of memory was only the appellant’s explanationfor his inability to give direct evidence concerning his wife’sinjuries.
-(4) In consequence, the Jury were not properly directed that thesubstantial defence of the appellant rested on inferences availablefrom the evidence and the challenge of the credibility of theevidence of the Mckinnes.
{&) There was misdirection when the trial Judge stated that to acceptthe suggestion of accident was to disregard the nature of theinjuries. In fact, the medical evidenoe did not controvertthe possibility of accident.
Volume LXXV
638
H. N. Q. FERNANDO, C.J.—-de Zoysa v. The Queen
Mr. Gratiaen relied also on the decision of this Court in The Queen v-Jayasinghe and others (69 N.L.R. 314), in which the convictions of anumber of persons on counts of conspiracy to murder and of murderwere quashed. This Court, in its concluding statement in the judgmentadopted the observation in Broadhurst’s case that “ the appellantshave been deprived of the substance of a fair trial
Without discussing the facts of Jayasinghe'8 case, it suffices to pointout certain matters upon which the decision of this Court relied :—
(а)The case for the prosecution rested almost entirely on the evidence
of a witness Daniel, who was a self-confessed accomplice inthe commission of the offences charged.
(б)Daniel had a personal motive against one Silva, whose death was
the subject of some of the charges against the accused in thecase.
The very improbability of Daniel’s story was held out in the
summing-up as a guarantee of the truth of his evidence.
Unusual stress was laid in the summing-up that corroboration
of accomplice evidence is not essential. Such a direction wasall the more unfavourable to the accused, because the trialjudge repeatedly “ went to the defence of Daniel the accomplice”,and because he failed ‘‘to draw attention to aspects of Daniel’sconduct and evidence which could shake confidence in hiscredibility.”
While the judgments in appeal in the cases of Broadhurst and Jayasinghedid deprecate the strong expressions of opinions by the trial Judge ineach case on questions of fact, that was certainly not the substantiveground on which the verdicts were reversed. In each of those cases,there were mis-directions as to the weight and effect of evidence on whichthe defence relied, and in Jayasinghe’s case, there was the gravemisdirection that the Jury were somewhat forcefully invited to actupon the uncorroborated and doubtful testimony of an accomplice.
In the instant case, our attention was drawn to some specific mattersin regard to which the summing-up of the trial Judge was in Mr. Gratiaen’ssubmission unfair to the defence. One statement of the trial Judge wasthat it was not illegal for a police officer to take a prospective witnessaway from the place in which the witness was found, and to record thestatement of the "witness elsewhere. If there had been any evidencethat any witness had been compelled by Police intimidation or violenceto accompany the Police to the place of interrogation, the questionwhether such compulsion was lawful and whether the evidence of thatwitness and of others should in consequence have been suspect wouldhave needed consideration. In fact, however, no witness in this case
1 (1065) 69 N. L. R. 3li.
H. N. G. FERNANDO, C.J.—de Zoyaa v. The Queen
639
testified to any such compulsion ; moreover in our opinion certainwitnesses were taken to the place of their interrogation purely for reasonsof official convenience, and not for any sinister reason.
In this same context, the trial Judge did strongly criticise suggestionsfor the defence that the police had suborned material witnesses to makefalse statements and to give false evidence at the trial. ' But, while weagree with the points made by the trial Judge in this connection, we arealso satisfied that, had there been such “fabrication” the statementsand the evidence of those witnesses would have been far more definiteand incriminatory than their evidence actually was. In our opiniontherefore, the criticism by the trial Judge of the defence suggestion ofthe fabrication of evidence by the Police was beyond reproach. –
The opinion we have just expressed was stated from the Bench duringMr. de Zoysa’s address on behalf of the 2nd and 3rd] accused,’ andMr. de Zoysa did notattempt toj substantiate thel suggestion of fabrication.Nevertheless, the Counsel (Mr. Gratiaen’s junior at the appeal) who hadrepresented the 1st accused at the trial, having obtained permission tomake a personal explanation, made the surprising statement that anexamination of the totality of the evidence would establish that therehad been fabrication of evidence by the Police. It suffices to recordthat Mr. Gratiaen at this stage stated that he had in his earlier addresspresented the relevant submissions on behalf of his client. Thosesubmissions did not include any argument that the suggestion offabrication could be supported by an examination of the evidence inthis case. But we agree with Mr. Gratiaen’s further observation thatthe suggestion of fabrication was made in good faith at the trial.
The prosecution adduced evidence which no doubt established thatthese accused had been concerned in the illicit distillery of liquor, inthe theft of a motorcar, in the commission of a daring robbery of money,and in the burial of the motor car in order to conceal evidence of therobbery. Mr. Gratiaen agreed that these items of evidence were relevantand admissible, and in our own opinion the prosecution had perforce toadduce the evidence in order to establish motive and to explain thecircumstances in which the alleged offences of conspiracy and murdercame to be committed by the appellants. But he submitted that sincethis evidence showed the accused to be persons of bad character, thelearned trial Judge should have warned the Jury that their charactershould not be taken into account in the consideration of the questionwhether they were guilty of the charges in this case. No such warningwas actually given in connection with the evidence to which we havejust referred, and the summing-up was perhaps defective to that extent.Nevertheless, in other contexts, the trial Judge did instruct the Jurywith emphasis that inferences adverse to the accused should not be drawnfrom evidence showing them to be persons of bad character.
540
H. N. G. FERNANDO, C.J.—rfe Zoyea v. The Queen
It was urged also that the learned trial Judge was unfair to the defencein his presentation of the evidence of the witness Gunadasa. Thiswitness had nothing to say about the alleged murder of P. K. D. Pererain November 1966. His evidence only was that about the middle ofJanuary 1967, he had been severely beaten up by and at the instigationof the 1st accused on suspicion of having stolen a bicycle, and thaton that occasion the 1st accused had said to him “ I am the man whokilled and burnt P. K. D. Perera and Sandarasekera; I will do the sameto you According to the evidence, this witness was found by thePolice.in a severely injured condition, tied up in premises over whichthe 1st accused had control. The witness was then questioned by thePolice, but did not in the statement which he then made, mention thisimportant admission alleged to have been made to him by the 1st accused.Mr. Gratiaen’s substantial complaint in this connection was that thetrial Judge’s direction only posed to the Jury the question whetherGunadasa’s failure in his first statement to mention the 1st accused’sadmission “ entitled ” the Jury to reject Gunadasa’s ultimate evidenceof that admission. We agree that the- direction on this point shouldhave been more properly phrased. But we see a perfectly valid reason(not mentioned by the trial Judge) for Gunadasa’s omission to mentionthis admission in his first statement; while it was necessary for him totell the Police that he had been “ beaten up ”, and why he had been“ beaten up ”, and who was responsible for that, the alleged admissionof the 1st accused referred to an extraneous matter. Moreover, therewas the evidence of the witness Juwan Appuhamy, who, at the instanceof the 1st accused visited Gunadasa in hospital; Juwan testified that onthat occasion, Gunadasa did tell him of the 1st accused’s remark thathe had killed and burnt P. K. D. Perera and Sandarasekera. Nosuggestion was made during the argument of the appeal that Juwangave false evidence on this point. There was thus corroboration ofGunadasa’s evidence concerning this remark of the 1st accused. In allthe circumstances, we are unable to say that the directions given by thetrial Judge regarding the evidence of Gunadasa were prejudicial to thedefence.
A. further matter urged by Mr. Gratiaen was that the trial Judgemisdirected the Jury with regard to the statutory statement which the1st accused had made to the Magistrate in the course of the non-summaryproceedings in this case. That statement contained a series of denialsof some of the facts to which prosecution witnesses had testified, andthe trial Judge directed the Jury that if fhey were satisfied that theaccused had told deliberate lies in that statement, then that was a matterwhich would strengthen the case against him. In our opinion, thelearned Judge ventured to tread on unsure ground, and apparently
H. N. O. FERNANDO, O. J.—da Zoyaa v. The Queen
541
without due appreciation of the circumstances in which such a venturemay be justifiable. He relied only on the decision of the Supreme Courtof New Zealand in the case of R v. Dehar1 (1969) New Zealand LawReports, page 763 which contains no helpful explanation as to theoccasions on which a venture of this unusual kind would bb appropriate.If, for instance, an accused person sets up an alibi or furnishes anexplanation which is proved to be deliberately false by evidence distinctfrom the evidence which incriminates him of the offence actuallycharged, then the falsity of the alibi or explanation might fortify analready strong prosecution case. But in the instant case, the 1staccused’s denials could be regarded as deliberately false only becausethey controverted evidence showing or tending to show his guilt. Wemuch doubt whether the trial Judge would have given his direction if hehad been aware of Lord Devlin’s observations in the Broadhurst case :—
“ It is very important that a jury should be carefully directed uponthe effect of a conclusion if they reach it, that the accused is lying.There is a natural tendency for a jury to think that if an accused islying, it must be because he is guilty, and accordingly to convict himwithout more ado. It is the duty of the judge to make it clear to themthat this is not so. Save in one respect, a case in which an accusedgives untruthful evidence is nO different from one in which hegives no evidence at all. In either case the burden remains on theprosecution to prove the guilt of the accused. But if upon the provedfacts two inferences may be drawn about the accused’ 8 conduct ofstate of mind, his untruthfulness is a factor which the Jury can properlytake into account as strengthening the inference of guilt. ”
Nevertheless, the actual direction of the trial Judge (stated more thanonce) was that, if the Jury did believe the prosecution witnesses oncertain material points, the deliberate lies of the 1st accused on thosesame points strengthened the prosecution case. Considering the severalcorrect directions that belief of a prosecution witness means belief beyondreasonable doubt, the direction had the effect in this case only ofinstructing the Jury that evidence already accepted as true andestablishing the guilt of the 1st accused was strengthened by the lBtaccused’s false denials. But if, as we confidently think, the Jury didaccept as true the prosecution evidence on the material points, then thefurther wrong instruction could have contributed little to the Jury’8ultimate verdict.
While being of opinion that there was misdirection in regard to thestatutory statement of the 1st accused, we are satisfied that no miscarriageof justice occurred on that account.
(1969) New Zealand Law Reporta 763.
642
H. N. G. FERNANDO. C.J.—de Zoysa v. The Queen
Mr. de Zoysa, on behalf of the 2nd and 3rd accused, relied upon thefailure of the learned trial Judge to direct the Jury that the allegedadmission made by the 1st accused to the witness Gunadasa was notevidence which could properly be taken into account against the 2ndand 3rd accused. Though no direction had been given at the time whenthe trial Judge first referred to Gunadasa’s evidence on this point, wefind that he had given the requisite direction a little later when he dealtwith an attempt to bribe Gunadasa in order to shut out evidence of thisadmission. We note also that the failure of the trial Judge to give adirection on this matter is not referred to in the petitions of appealfiled by the 2nd and 3rd accused.
In any event, the alleged admission of the 1st accused in no wayimplicated the 2nd and 3rd accused, because in substance the 1st accused’sadmission was “ I killed P. K. D. Perera To some extent, therefore,the admission by the 1st accused might have served to exculpate theother two accused.
In our opinion, the prosecution adduced evidence which clearlyestablished that P. K. D. Perera’s death was caused by the 2nd and 3rdaccused, acting together with some person referred to in the evidenceas “ Wije The admission of the 1st accused served only to confirmthe strong inference, arising from several other items of evidence, thatthe 1st accused had instigated the minder.
We invited Mr. de Zoysa to point to any unfairness in the directionsof the trial Judge concerning the evidence of the two witnesses whosetestimony the Jury obviously accepted in reaching the conclusion thatthe 2nd and 3rd accused participated in the murder of P. K. D. Perera.But Mr. de Zoysa was unable to point to any such unfairness.
The arguments of Counsel did not persuade us that there is anyjustification for an opinion that the accused in this case were deprivedof the substance of a fair trial. On the contrary, we were satisfied thatthe verdict of the Jury was perfectly reasonable, having regard to theevidence concerning the minder of P. K. D. Perera and to the mattersupon which the prosecution relied to establish that there had been aprior conspiracy to commit that murder. Despite the misdirectionsand omissions in the charge to the Jury which have been discussed, wewere satisfied that any Jury properly directed would have reached thatsame verdict. For these reasons, we made order dismissing theappeals at the end of the hearing.
Appeal dismissed.