118-NLR-NLR-V-70-E.-AM-MOULIN-NONA-Appellant-and-J.-A.-V.-ROUTHKEDGE-Respondent.pdf
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JMoulin Nona v. Routhledge
Present : Samerawickrame, J.A. MOULIN NONA, Appellant, and J. A. V. ROUTHLEDGE,RespondentS. C. 839j66, with Application 372— M. C. Avissawella, 65467
Criminal trespass—Intention to annoy—Quantum of evidence.
The accused-appellant, who was a married woman working on an estate,continued to be in occupation of her lineroom after she was given notice to quitit. The evidence showed that her dominant intention was to remain with herhusband and her family in the lineroom of which her husband continued to
Remain in occupation after bis employment on the estate bad been terminated.
* • • •Heffi, that the accused could not be convicted, upon the evidence, of theoffence of criminal trespass.
SAME RAW ICKRAME, J.—Mo'din Nona v. Routhledge
669
ApPEAL, with application in revision, from a judgment of theMagistrate’s Court, Avissawella.
S. S. Sahabandu, for the accused-appellant/petitioner.
H. W. Jayewardene, Q.C., with Ralph de Silva, I. S. de Silva andS. C. Crossette-Thambiah, for tbo complainant- respondent.
Cur. adv. vult.
September 22, 1967. Samebawickbame, J.—
The appellant appeals from a conviction for the offence of criminaltrespass in the Magistrate’s Court of Avissawella. She has also filed anapplication in revision.
The appellant is a married woman and in the original notice served onher terminating her employment, it was stated that her services werebeing terminated because her husband’s employment on the estate hadbeen terminated. The notice also required her to give up her linerooihaccommodation and to leave the estate on or before the 18thOctober, 1963.
In giving evidence, the complainant-respondent, who is the Superin-tendent of the estate referred not to any act of the accused-appellantalone but stated, “ as a result of their continuing to live in this estate itcaused me annoyance ”. In cross-examination too he referred to certainacts done by more than one person. He was obviously referring to thehusband of the accused-appellant as well as the appellant.
The accused-appellant gave evidence and she stated that she was stillliving on the estate with her husband and that her husband too lived inthe lineroom. In these circumstances, the learned Magistrate had toconsider whether the dominant intention of the accused was to remainwith her husband and her family or to annoy the Superintendent. Hehas failed to give consideration to this aspect of the matter.
Learned counsel for the complainant-respondent pointed to evidencegiven by the appellant where she stated “ I was asked to shift to anotherlineroom about 100 yards away shortly before giving me notice to quitthis lineroom. I told the Superintendent that I cannot go because of thelarge family ”. Learned Counsel for the complainant-respondent sub-mitted that this evidence shows that there was defiance on the part ofthe accused-appellant and that her continued occupation of the lineroomafter she was given notice to quit too is referable to such defiance. Theappellant has stated that from 1963 she was living in one of the cottagetjrpe lineroems»near the factory. She has also stafted that nine childrenwere bom to her on this estate. If the majority of the cluldren are
570
Navas v. Mohamed
»»•-
living with her, there may well have been reason for her to teU the Superin-tendent that she should not be removed from this cottage type lineroomin view of her large family. There can, however, be no doubt that theappellant was not entitled to disregard the direction of the Superintendentto transfer from the lineroom of which she was in occupation to anotherlineroom.
This is not a case where one can say with confidence that the continuedoccupation of the lineroom by the appellant is attributable to defiance ofthe Superintendent and the intent to annoy him. As I stated earlier, itis a matter for consideration whether the appellant’s dominant intentionwas not to remain with her husband and her family in the lineroom ofwftich her husband continued to remain in occupation. In the absence ofconsideration of this matter by the learned Magistrate, the convictionof the appellant cannot be sustained. Accordingly, I set aside theconviction of the appellant and the sentence passed on her and Idirect an acquittal to be entered.
The application in revision appears to have been filed because strictlythe appeal was out of time. Accordingly, the order made above is madeupon the application and the appeal is formally rejected.
Conviction set aside.