049-NLR-NLR-V-67-K.-A.-ANDRAYAS-and-6-others-Appellants-and-THE-QUEEN-Respondent.pdf
[Court op Criminal Appeal]
1964 Prasevi: T. S. Fernando, J. (President), Sri Skanda Rajah, J.» and
P. A. Silva, J.
K. A. ANDRAYAS and 6 others, Appellants, and TriK QUEEN,
Respondent
C. C. A. 87 to 93 op 1964, with Applications 91 to 978. O. 2—2if. O. WalasmuUa, 25102
Unlawful assembly■—"Burden of proof—Vicarious liability—Duty of judge to give
adequate direction to jury—Penal Code, as. 140, 146, 296.
Mere membership of an unlawful assembly, without more, does not rendereach member of that unlawful assembly criminally liable for an offence com-mitted by some other member thereof. Such liability arises at law only whenthe existence of a certain other element or elements specified in section 140of the Penal Code has been established.
Merely reading out to the jury the text of section 146 of the Penal Code isinadequate by way of a direction to the jury on the law which renders personsvicariously responsible for the offences of others on the basis of membershipof an unlawful assembly.
In a prosecution for being members of on unlawful assembly, the burden ofproof is throughout on the Crown to satisfy the jury beyond a reasonabledoubt that five or more than five persons got together with an unlawfulcommon object.
At:
PEALS against certain convictions in a trial before the SupremeCourt.
0. E. Chitty, Q.C., with E. B. Vannitamby, George Rajapakse, KumarAmerasehere and M. Kanakaratnam, for the accused-appellants.
Abeysuriya, Crown Counsel, for the Crown.
Our. adv. wit.
October 27,1964. T. S. Fernando, J.—
The seven appellants stood indicted as the 1st to the 7th accused atthe trial on three charges which alleged that all of them—
were members of an unlawful assembly, the common object of
which was to cause hurt to one Don Edwin—an offence punish-able under section 140 of the Penal Code ;
were guilty of the offence of murder of Don Edwin in that one or
more members of the said unlawful assembly did commitmurder by causing Don Edwin’s death, which murder wascommitted in prosecution of the said common object or wassuch as the members of the unlawful assembly knew to belikely to be committed in prosecution of the said commonobject, and that all were members of the said unlawful assemblyat the time of the commission of that murder—an offencepunishable under section 296 read with section 146 of the PenalCode;
„ (3) were guilty of murder by causing the death of the said Don Edwin—an offence punishable under section 296 of the Penal Code.
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It was evident from the proceedings that in respect of charge (3)described above the prosecution relied on the principle of liabilityembodied in section 32 of the Penal Code.
By the unanimous verdict of the jury the accused were found not guiltyof charge (3), but were all found guilty (a) of charge (1) and (b) of com-mitting culpable homicide not amounting to murder in respect of charge(2). The appeals must therefore be considered on the basis that the juryby its verdict negatived the existence of a common intention on the partof the seven appellants to kill Don Edwin or, indeed, to cause hurt tohim.
The main ground of appeal was that the directions to the jury inrespect of the law that renders persons vicariously responsible for theoffences of others on the basis of membership of an unlawful assemblywere both inadequate as well as wrong. The validity of this ground ofappeal urged on behalf of the appellants could be discussed after I haveset down briefly the facts which formed the case against the appellants.
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Of the persons accused, the 2nd is the father of the 3rd, while the 5this the father of the 1st and 6th accused. The 7th accused was said to bean uncle of the 3rd, while the 4th bore the same surname as the 2nd andthe 3rd accused.
The sole witness of the attack on the deceased was Peter, the son of thedeceased, a lad some seventeen years of age. He claimed to havewitnessed the attack on his father which, according to-him, took place….some little time after 7 p.m. He said he carried an electric torch withhim by the aid of which as well as the moonlight he identified the personswho attacked his father. He himself received injuries, one at least ofwhich he attributed to a blow with a katty dealt on him by the 6thaccused. Accord‘ng to this witness Peter, when he was returning homefrom school that very afternoon, he saw the 1st and the 4th accused anda man named Kiriya uprooting boundary fence-sticks of a fence which afew days before that had been repaired by the deceased. He questionedthe 4th accused why those fence-sticks were being uprooted whereuponhe was kicked by the latter. He hurried home and related to his motherwhat he had seen and suffered, and his mother in turn related later tothe deceased on his return home from some journey what she had herselflearnt from Peter. The deceased left his home in the evening accompaniedby Peter in order to make a complaint at the Police station. It was notdisputed that the deceased made a complaint to the Police and thatPeter himself did not go into the Police station premises with his father
but remained at the bazaar. The deceased was killed on his way homeafter complaining to the Police, probably within an hour of the makingof that complaint.
To continue the evidence of Peter, when he and his father were on theirway home they saw the 2nd, 3rd and 7th accused in the verandah of thehouse of the 1 ast-mentioned of them. These three accused persons thengot on to the road with short clubs (polu keli) in their hands and followedPeter and the deceased at a quick pace. Peter and the deceased thenhurried towards *heir own home when, at some point on the road oppositethe house of one Kavanihamy, the 4th accused struck the deceased on hishead with a club, a blow which caused the latter to fall on the embank-ment by the side of the road. After the deceased fell the 1st, the 4th, the5th and the 6th accused struck the fallen man. The 1st and the 4thaccused used clubs, the 5th a mammoty and the 6 th a katty in theirattack upon the deceased. The 2nd, the 3rd and the 7th accused whohad themselves come up by this time joined in the assault on thedeceased. The 6th accused, in addition, as stated above already, hitPeter on his face with the katty. Peter ran home and returned towardsthe scene of the attack accompanied by his mother, but they were bothchased off by the 1st, 4th, 5th and 6th accused.
In his statement made to the Police that same night—within an hour ofthe attack on the deceased—Peter did not mention that the 2nd, 3rd and7th accused joined in attacking his father. The discrepancy on thispoint between his testimony at the trial and his statement to the Policewas of vital importance, particularly as the only witness available tospeak to the participation of the several accused persons in this attackwas Peter himself. The conviction of the appellants was dependent ontheir being proved to have been members of an unlawful assembly. Thedeath of the deceased resulted from an injury which penetrated his heart.
• That this injury must have been caused with a sharp thin-bladed knifewas not capable even of dispute. Although Peter claimed to have seenthe weapons each of the accused used he did not claim to have seen aknife. It was, of course, probab*e that he did not see the entirety of theattack on his father, but he took it upon himself to say at the trial that hesaw even the 2nd, 3rd and 7 th accused attack his father after the otheraccused had dealt blows. Excluding the stab injury to the heart, theother injuries on the deceased were not sufficient in the opinion of themedical witnesses to cause his death. It was not denied before us thatthe prosecution did not claim to have established the identity of theperson who dealt the fatal blow. In these circumstances, as the jurynegatived the existence of a common intention to kill the deceased, thedirections given by the learned trial judge on the question of criminalliability based on unlawful assembly require careful scrutiny.
On the appellants’ behalf, apart from the main point indicatedearlier, it was urged that the jury was not correctly directed in regard tothe burden of proof in respect of the charges based on unlawful assembly,
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viz., charges (1) and (2). At the outset of his charge, the trial judgeu stated :—■*"'**•
“ In order to constitute an unlawful assembly there must be aminimum of five persons : that is the irreducible minimum. So thatwhen you sift the evidence if you can safely say to yourselves thatthere were only three or four or two, however much you may believethat they assaulted the deceased, still the charge of unlawful assemblyshould fail because there must be a minimum of five persons in order toconstitute an unlawful assembly/*
There is some little force in the argument that the above direction wascapable of leading a jury to think that there was some kind of obligationon the defence to reduce the number of five persons required under ourlaw to constitute an unlawful assembly. The burden of proof beingthroughout on the prosecution, it was for the prosecution to satisfy thejury beyond a reasonable doubt that five or more than five persons gottogether with an unlawful common object. The direction reproducedabove was, we are free to say, open to the objection already noted above ;but, had there been nothing else open to objection in the learned judge’sdirections to the jury, we could hardly have been expected to pay anyserious attention to it as affecting the maintainability of the verdicts
reached by the jury.
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It was, however, pressed upon us that there were other directionsbearing upon the question of vicarious liability more open to objection.These other directions formed the subject of the main ground of appeal.The passages from the trial judge’s charge to the jury quoted belowexhaust his explanation of the law which was to guide the jury in reachingtheir verdicts on charges (1) and (2):—
(a) " If having formed an unlawful assembly one or more memberscommit an offence- then it becomes serious in this sense ; thateveiyone of those persons that forms the unlawful assembly isguilty of that offence, if it was done in the prosecution of thecommon object or if there was reasonable chance or reasonableprobability of such an act being done. For instance, if thereis an unlawful assembly of five or more persons and one ofthem commits murder all the members of the unlawfulassembly are guilty of murder. If one of them commitsculpable homicide all the members are guilty of culpablehomicide. If one of them commits simple hurt all themembers are guilty of having committed simple hurt if theunlawfuly assembly charge is established.
So, in the second count, which is a serious count, the pro-secution alleges that having formed themsel ves into an unlaw-ful assembly that one or more members of this assembly—jfchat is one of these seven accused—not an outsider—murderedDon Edwin and therefore all seven are guilty of murder. Thatis the second count.”—pp. 259-60.
(6) “ If you are convinced that they, being members of. an unlawfulassembly caused the death of the victim, but the person whocommitted the offence did not have in him a murderousintention, but he had the knowledge that death would be thelikely result of his act, then the offence committed is culpablehomicide Dot amounting to murder, and they are all liable forit, being members of an unlawful assembly. If the Crown has. proved, beyond reasonable doubt, that these accused formedan unlawful assembly and. that they caused the death of thisman, then it is open to you to bring in a verdict of culpablehomicide not amounting to murder on the ground that theyhad the knowledge that death would be the probable result oftheir act.”—p. 262.
<c) “ If you, after considering the evidence given by Peter, cannotdraw the inference that anyone of these accused caused thedeath of the deceased, then none of them can be found guiltyof murder. If you are, however, convinced that they weremembers of an unlawful assembly and that they attacked thedeceased, you will find them guilty of the second count thatthey being members of an unlawful assembly did cause hurt toDon Edwin. If you hold that these seven accused weremembers of an unlawful assembly, and one or more of themhad the murderous intention at the time they assaulted andattacked this man, then they are guilty of murder. If theydid not have the murderous intention, but if they had theknowledge that death would be the likely result of their act,then they would be guilty of culpable homicide not amountingto murder. If you are unable to draw the inference that theycaused the death of this man, Don Edwin, then they will beguilty, while being members of an unlawful assembly, of havingcaused hurt to this man.”—pp. 264-65.
“ Before I pass on to the third count I will merely read out to
you the section of the Penal Code which makes each memberof an unlawful assembly liable for the acts of the others ”.—-(Here the learned judge read out the text of section 146 as itappears in the Penal Code)—p. 266.
Then, just before he concluded—
" In regard to the second charge—the 2nd charge is a charge of
murder—you can only find them guilty of murder if you aresatisfied that one of these people caused the death of DonEdwin with a murderous intention while all were members ofan unlawful assembly.”—p. 304.
(/) “ If you say that one of these people caused the death of DoitEdwin not with a murderous intention but only with a knowledge that death would be the likely, result then the properverdict on count (2) would be while being members of anunlawful assembly that they committed culpable homicide notamounting to murder ”—p. 305.
Inasmuch as the jury did, in respect orthe 2nd count of the indictmentsreturn against all the accused a verdict of guilty of the offence of cul-pable homicide not amounting to minder, it must be assumed that, inspite of Petei's failure to see a knife in the hands of any of the accused,they reached the conclusion that one of the accused had caused the death,of the deceased, although they were unable to say which one of them haddone so. Further, they have negatived the existence of a murderousintention on the part of the person who actually caused the death of DonEdwin. Having regard to the undisputed fact that the death of DonEdwin was the result of a stab wound into the heart with a thin-bladedknife, it becomes difficult for us to appreciate how the absence in thatperson of a murderous intention could reasonably have been reached.However that may be, it could not seriously be doubted that on the .directions given to them the jury might well have thought that it wasopen to them to convict all the accused of committing the offence ofculpable homicide not amounting to murder if their conclusion was thatone of these accused caused the fatal injury and that all seven weremembers of the unlawful assembly. It was, in our opinion, necessaryfor the trial judge to have given an adequate direction to the jury thatmere membership of an unlawful assembly did not render each memberof that unlawful assembly criminally liable for an offence committed bysome other member thereof. It was not. in our opinion, a correctOUeuuiOn ui tliC jury that mere membership of an unlawful assembly,without more, rendered each member of that unlawful assembly criminallyliable for an offence committed by some other thereof. Such liabilityarose at law only when the existence of a certain other element or elementsspecified in section 146 of the Penal Code had been established. It was,in our opinion, not an adequate discharge of the trial judge’s function tocontent himself with a reading out to the jury of the text of the saidsection 146. We would here respectfully apply, by way of analogy, thedictum of the majority of the Court in the case of Podisinghov. The King1which was to the effect that merely reading out to the jury the section of the-Code relating to criminal conspiracy was inadequate by way of a directionon the law which renders persons liable to punishment on the basis of a.conspiracy. In the instance under review the position was made oven,more unfortunate by the use by the learned judge of the words “ I thinkI will merely read out ”—as quoted earlier at passage (d) of his directions—which words were capable of leaving on the jury the impression thatthe question was not one for serious concern. Even this reading out of the-
-text of the section did not stand alone. At one stage—vide passage (a)reproduced above—the learned judge appears to have equated knowledgeon the part of the members of the unlawful assembly that the offence inquestion was likely to be committed in prosecution of the common objectto “ a reasonable chance of the commission of such an offence Suchan equation appears to us to have diminished the extent of the burden ofproof that lay upon the prosecution.
Having regard to the facts of the case under review by us where the«ole witness for the prosecution had in his statement to the Policeimplicated as attackers only the 1st, 4th, 5th and 6th accused, althoughhe chose to say in court that the 2nd, 3rd and 7th accused also joinedlater in the attack, it is undeniable that, on that witness’s version of theincident as narrated to the Police, the question of the presence of fivepersons at the scene of the attack was beset with some doubt. In thatsituation a very clear direction in respect of the manner in which vicariousliability arose was necessary, and we have endeavoured to show above—"by quoting all the relevant directions given to the jury—that the actualdirections were not only inadequate but were capable of leading the juryinto thinking that all that the prosecution had to prove was (1) the■commission of an offence by one of the members of an unlawful assemblyand (2) membership—without more—on the part of the other members.This inadequacy of direction, being on a point on which direction wasnecessary, constituted in our opinion a misdirection of the jury, and themain ground of appeal had to be upheld and the appeals allowed.
We might add that we were of opinion that there was som9 substancein another point raised by the appellants, viz., that the jury was neitherinvited to consider the case against each of the appellants individuallynor was any attempt made in the summing-up to do so. The 2nd, 3rdand 7th accused, according to Peter, began to follow the deceased from apoint on the road which—according to measurements proved in evidence—was about 433 yards south of the place where the deceased was first-struck by the 4th accused. This circumstance, coupled with theinconsistency between Peter’s statement and his evidence, made it•imperative for more consideration to have been given at the trial in thiscase to the question of the three persons who followed the deceased.having constituted themselves members of an unlawful assembly alongwith the four persons who were said to have been on the road in front of.Kavanihamy’s house.
We were invited by Crown Counsel to consider the application in thiscase of the proviso to section 5 (1) of the Court of Criminal AppealOrdinance or, alternatively, to order a retrial. We felt ourselves quiteunable to adopt either of these courses, and therefore allowed the appeals-and quashed the convictions of all the appellants.
Convictions quashed.