In the Matter of the Trial of THOMAS PERERA alias BANDA

002-NLR-NLR-V-29-In-the-Matter-of-the-Trial-of-THOMAS-PERERA-alias-BANDA.pdf


( 6 )
Present; Garvin J.
In the Matter of the Trial of Thomas Perera alias Banda.29—P. C. Colombo, 4:3,833.
Auterfois acquit—Jury asked to reconsider verdict—Dicharge by
Commissioner of Assize—Delivery of verdict—Criminal Procedure
Code, ss. 230, 248 (J8).
Where a jury was directed by a Commissioner of Assize toreconsider their verdict, and where before such reconsidered verdictwas delivered the Court discharged the jury,—
Held, that the Court had power to discharge the jury undersection 230 of the Criminal Procedure Code.
Such an order of discharge cannot be pleaded as auterfois acquitin a retrial on the same indictment.
T
HE accused was indicted before the Supreme Court withmurder and with having caused evidence of the commission
of that offence to disappear, and in answer to the indictment sub-mitted a plea of autrefois acquit.
It appeared that the accused had stood his trial before theCommissioner of Assize at Colombo on the same indictment, whenthe jury returned a verdict of acquittal by a majority of five to two,on both counts.
The Commissioner of Assize then asked the jury to retire and toconsider whether the prisoner was not guilty of culpable homicidenot amounting to murder. The jury then retired, and on theirreturn the Commissioner of Assize discharged them—before averdict was given. It was contended that as the jury wereprevented from giving a verdict after reconsideration, the originalverdict must be deemed to be the true verdict.
March 15, 1927. Garvin J.—■
In answer to the indictment presented in this case the prisonerpleaded that he had been tried and acquitted on this indictmentand could not in law be tried again. At the termination of the argu-ment which took place before me on March 14, I ruled that the pleafailed, and intimated that in view of the somewhat exceptionalcircumstances under which the plea was raised my reasons wouldbe set down in writing.
The facts material to the determination of this matter appearin the evidence of Mr. Gunaratne, who officiated as registrar at thefirst trial. It is sufficient here to say that the trial followed theusual course up to the point when the jury who retired to consider
( 7 )
their verdict returned, and, in answer to the usual questions,intimated that by a majority of five to two they found the prisonernot guilty on both counts of the indictment.
The learned Commissioner of Assize inquired whether the jurydid not think the prisoner guilty of the lesser offence of culpablehomicide not amounting to murder. The foreman replied thatthey had not considered that aspect of the case. The Commissionerthen asked the jury to retire and consider whether the prisoner wasnot guilty of culpable homicide not amounting to murder.
It is of course competent for a jury upon an indictment formurder to find the prisoner guilty of culpable homicide not amount-ing to murder or any lesser offence if a view of the facts is possiblewhich admits of such a verdict.
In directing the jury to retire and consider the matter furtherthe Commissioner presumably was acting under the provisions ofsection 248 (2) of the Criminal Procedure Code. It is evidentthat the Commissioner did not approve of a verdict of not guiltyto the indictment.
The provision of the law above refered to empowers the presidingJudge if he does not approve of a verdict to request the jury toreconsider their verdict. It was suggested that this power wayonly exercisable when the indictment contains a multiplicity ofcharges. This, it is said, is a conclusion which proceeds from aconsideration of sub-section (1), which, it was contended, controlsthe meaning of sub-section (2) of section 248.
The two sub-sections refer to separate and distinct matters whichare wholly unconnected, save in the one respect that they bothrelate to the verdict. The former, while stating that the verdictof the jury shall ordinarily be taken on all counts in the indictment,reserves to the Judge the power to direct that the verdict on certaincounts need not be taken and to address to the juiy such questionsas he thinks necessary to ascertain what their verdict is; the lattervests hjm with power to direct the jury to reconsider a verdict ofwhich he does not approve, subject to the reservation that tho verdictreturned after such reconsideration shall be deemed to be the trueverdict.
Up to this point no verdiqt had been given upon which anyargument- in support of the plea of autrefois acquit can be founded.
In accordance with the directions of the Commissioner the juryretired, and when they returned he discharged them. No verdictwas given or entered. In making his order discharging the jurythe Commissioner intimated that he did so in exercise of the powersvested in him by section 230.
* It is urged that the learned Commissioner was mistaken in hisassumption that in the circumstances of this case he was empoweredby section 230 to discharge the jury. Upon this contention was
29/51927.
GUnvnr J.
In the Matterof the Trialof ThotiuvPerera . aliasBanda
( 8 )
based the further argument, that since the jury were prevented fromEarvin J. giviog a verdict after reconsideration the original verdict must be
_deemed to be the true verdict.
in the Matter
of the Trial Now, a jury directed by the presiding Judge under section 248 (2)^&rera^e& reconsider a verdict of which he did not approve mayresolve to
Bandareturn the same verdict or a different verdict. In thiscase it js
conceivable .that the jury may have resolved to return averdict of
guilty of culpable homicide not amounting to murder;they may
have resolved to return a verdict of guilty on the indictment; itwas open to them to find him guilty on the first count and noton the second, or vice versa; they may have found the prisoner notguilty on both counts; in short, it was competentfor them
unembarrassed by any conclusion indicated in their first verdictto return any verdict they chose on the indictment.
It is idle to speculate as to the verdict they might have returned.To whatever cause the failure to return a verdict may be ascribed,no verdict was in fact returned. The verdict whichthe Com-
missioner being lawfully empowered thereunto requested the jury toreconsider is not the final verdict of the jury, and there is no otherverdict. The absence of a verdict is fatal to any argument insupport of the plea of autrefois acquit which is based on the existenceof a verdict of not guilty.
But this contention, such as it is, has for its foundation theargument that the Commissioner was wrong in law in dischargingthe jury.
Section 230 of the Criminal Procedure Code is as follows: —
“ The Judge may also discharge the jury whenever the prisouerbecomes incapable of remaining at the bar and wheneverin the opinion of the. Judge the interests of justice sorequire.
In my view the argument that the Judge is only empowered'to discharge the jury when the accused becomes incapable ofremaining at the bar and in cases ejusdem generis with the casespecified is untenable.
The rule of ejusdem generis is a rule of construction which ismsually applicable when a series of particular and specific wordsindicative of a class is followed by general words. In such a casethe general words are ordinarily construed subject to the limitationimported by the class to which the specified instances belong.
This is not such a case. The rule of interpretation applicableto this case is the general rule that the words of a statute ought■prima facie to be constructed in its primary and natural sense. There16 nothing in the language of the section to suggest any intentionthat the power of discharge vested in a Judge was to be subject toany limitation other than that specified—the interests of justice.
( 9 )
The word “ whenever ” indicates the intention of the Legislature 1927.that the power was exercisable, not only in the case specified, but oa»vi».J.
in any case in which, in the opinion of the presiding Judge, such a „ ,—-?
**..'Jti the Mutter
course was necessary in the interests of justice.0/
Moreover, the reservation of such a power is in accordance with */ Thotna#the rule of English procedure, that it is competent for the Judge to Bandadischarge the jury when there is a necessity to do so. It ig entirelyin the discretion of the Judge whether he will excise the power ornot, and his exercise of the discretion is not open to review—videR. v. Richard Lewis.1
The Commissioner has not given his reasons for discharging thejury. Since it is not open to review his decision, there is nothingto be gained in ascertaining his reasons even if that were possible.
A variety of grounds upon which juries have been discharged havein the English Courts been held to be good and sufficient reasonsfor the order of discharge—for example, when one of the jurors istaken so ill as not to be able to proceed with the trial; wheremisconduct on the part of one or more jurors is discovered beforeverdict; and in Ceylon the discovery in the course of the trial thata member of the jury empanelled to try the prisoner was disqualifiedfrom serving on a jury was followed by the discharge of the jury.
It is urged that the powers conferred by section 280 when usedin conjunction with and after the exercise of the power vested in aJudge by section 248 (2) to direct a jury to reconsider a verdict ofwhich he does not approve will enable a Judge to make it impossiblefor a jury to return a verdict with which he does not agree. Thepower conferred by section 230 is a large one, and the bare possibilityof its misuse must be admitted. But in the interests of justice,which are identical with the interests of the community, large and'unfettered powess to do justice are confidently committed tosuperior Courts, and in particular the supreme tribunal of the land.
The mere possibility of misuse is not a reason for placing uponsection 230 a meaning which the language of the enactment doesnot bear, and which sets to the .powers conferred restrictions andlimitations that will cripple those to whom it is entrusted in theirefforts to secure that justice shall be done.
Inasmuch as the Commissioner’s order is not open to review, andsince his reasons are not before me, I have neither the power, nor amI in a position, to say anything judicially in regard to the ordermade in this case. But I am free with reference to the argumentaddressed to me to express my own opinion that to exercise in com-bination the powers committed by section 248 (2) and section 280solely for the purpose of preventing a jury from returning a verdictwhich is not in accord with the presiding Judge’s view of the caseis not a use to which those powers should be^put. Ro long as a1 2 Criminal Appeal Reports 180.
ttttr.
Garvin J.
In the Matter4f the Trialof ThomasPerera aliasBanda
( 10 )
jury remains an essential part of the tribunal constituted by lawfor the trial of persons indicted before the Supreme Court, the finalverdict of the jury must prevail, and not tfye opinion of the presidingJudge; and the prisoner may not after trial be deprived of his rightto the verdict of the jury on the question whether or no he is guiltyof the charges or any of the charges laid against him, unless thereare cogent reasons which demand that in the interests of justice theproceedings should be terminated before a final verdict is entered.
For the reasons set out earlier the plea of autrefois acquit fails.Such a plea must be founded upon proof of a former acquittal for Uesame offence. In this case there has been no such acquittal.