002-NLR-NLR-V-67-K.-D.-YAHONIS-SINGHO-Appellant-and-THE-QUEEN-Respondent.pdf
[Court of Criminal Appear]
Present: T. S. Fernando, J. (President), Sri Skanda Rajah, J.,and G. P. A. Silva, J.K. D. YAHONIS SINGHO, Appellant, and THE QUEEN, RespondentC. C. A. 99 of 1964, with Application 103S. G. 41.—M. G. Panadura, 81251
Trial before Supreme Court—Defence of alibi—Burden of proof—Misdirection.
The accused-appellant was charged with murder, and his defence was that ofalibi. The prosecution relied on the evidence of a witness who stated that hesaw the accused stabbing the deceased. The accused called as his witnessa man, S, who stated that, at the time of the offence, the accused was seen at aboutique which was about one-eighth of a mile away from the scene of theoffence. When the trial Judge, in his summing-up, dealt with S’s evidence, heomitted altogether to give the jury any direction as to what they were to do ifthey neither accepted S’s evidence as true nor rejected it as untrue.
Held, that the omission to direct the jury on the intermediate position wherethere was neither an acceptance nor a rejection of the alibi was a non-directionon a necessary point and constituted a misdirection.
A
-tl-PPEALi against a conviction in a trial before the Supreme Court.Golvin R. de Silva, with L. V. P. Wettesinghe, for the accused-appellant.
V. S. A. Pullenayegum, Crown Counsel, for the Crown.
Cur. adv. vull.
October 26, 1964. T. S. Fernando, J.—
The appellant appealed against his conviction by a 6 to 1 majorityverdict of the jury on a charge of murder of one Panditharatne and thesentence of death pronounced on him as a consequence of that verdict.
The point raised on his behalf at the hearing of his appeal was that inrespect of the burden of proof in the case there was an inadequatedirection of the jury by the trial judge. The defence relied on being thatof an alibi, the point specifically urged on behalf of the appellant wasthat there was a failure on the part of the trial judge to direct the juryin regard to the impact of the evidence of the alibi on the case for theprosecution.
The prosecution led evidence of a direct nature, that of a son of thedeceased, the witness Amaradasa, in an effort to establish that the appel-lant stabbed the deceased. The appellant, who has a tea boutique aboutone-eighth of a mile from the place where the deceased was alleged to
have been stabbed, called as his witness a man of the name of Sirimanewho testified that the appellant was serving tea to his customers (includingSirimane himself ) at the time cries were heard from the direction in whichthe stabbing of the deceased must have taken place. Sirimane wenton to say that on hearing those cries he went in that direction and sawthe deceased lying fallen on the edge of the road, and that he waited atthat spot for about ten minutes before leaving for his home.
In regard to this evidence of an alibi, the learned trial judge directedthe jury at two different stages of his charge. At the earlier of thesetwo stages he stated :—
“ I would like you at this stage to consider the evidence ofSirimane. Sirimane’s evidence is that at the time he heard the criesof “ ammo ”—I believe in answer to you he said that the distancebetween the accused’s boutique and the scene was about 1/8 of a mile—the accused was in his boutique serving customers. If you accept thatevidence, it must straightaway throw doubt on the prosecution caseand the accused is entitled to be acquitted. ”
At the later stage, he addressed the jury thus :—
“As I told you a while ago, if you accept his (Sirimane’s) evidenceit throws doubt at once on the prosecution story and the accused isentitled to an acquittal ; but, if you reject his story, it does not followthat the accused should be found guilty, because the burden is alwayson the Crown to prove beyond reasonable doubt that it was thisaccused who caused the fatal injury on the deceased. That burden isfully on the Crown, and you should ask yourself ee are we convinced,are we quite certain in our minds that the evidence of Amaradasapoints to this accused having stabbed the deceased. ”
While these directions to the jury were correct so far as they went, itwas submitted on behalf of the appellant that they were inadequate andthat the impact of an acceptance of Sirimane’s evidence was even morefavourable to the appellant than indicated by the learned judge. Wethought the submission was well-founded. If the evidence of an alibiis accepted, such acceptance not only throws doubt on the case for theprosecution but, indeed, it does mere, it destroys the prosecution caseand establishes its falsity. As the jury convicted the appellant.it mustbe assumed that they did not accept the evidence of Sirimane. Thelearned judge directed the jury, if we may say so with respect, correctlyas to what course they should follow if they rejected the evidence ofSirimane. He, however, omitted altogether at both stages of his chargereferred to above to give them any direction as to what they were to doif they neither accepted Sirimane’s evidence as true nor rejected it asuntrue. Jurors may well be in that position in regard to the evidenceof any witness. There was in this case no question of a shifting of theburden of proof which throughout lay on the prosecution. If Sirimane’s•evidence was neither accepted nor was capable of rejection, the resultingposition would have been that a reasonable doubt existed as to the truthof the prosecution evidence. We think the omission to direct the juryon what may be called this intermediate position where there wasneither an acceptance nor a rejection of the alibi was a non-direction ofthe jury on a necessary point and thus constituted a misdirection.
Learned Counsel for the Crown submitted that in the circumstancesof this particular case the directions to the jury were adequate to coverthe case where they were both unable to accept and unable to reject theevidence of the alibi, and that no special direction on the lines we haveindicated above was called for. He relied for this submission, in additionto the passages from the charge already reproduced above by me, on thefollowing directions given by the learned judge. At the outset of hischarge, he stated :—
“ From that it follows that the Crown has got to prove its case beyondreasonable doubt. You must be convinced on the evidence which youhave heard that this accused inflicted the injury which resulted inthe death of Panditharatne. You must be quite sure of that in yourmind, certain of it, to enable you to take the view that this accusedhad caused that injury. That is what is meant by proof beyondreasonable doubt. If you are not sure, if you are assailed by anyreasonable doubt, then you will give the benefit of that doubt to theaccused.”
Next, he stated :—
“ The Crown case is that it was this accused who stabbed Panditha-ratne and they have put before you the evidence of an eye-witness,namely, Amaradasa, a son of the deceased. He says he was presentand saw this accused stab his father. You will have to ask yourselveswhether you accept the evidence of Amaradasa or reject it, or whetherhis evidence is of such doubtful value that you must give the benefit ofthe doubt to the accused.”
Then, finally, towards the close of his charge, he addresses the jurythus:—
“ Has the Crown established beyond reasonable doubt that it wasthis accused who inflicted the vital injury on the deceased ? If, as Itold you more than once today, you have any reasonable doubt inregard to that, he is entitled to go out a free man ; but, if you aresatisfied, having regard to the principles I have enunciated to you, thatAmaradasa is a witness to truth, that you„can accept his evidence withconfidence, with certainty and sureness, then you will have to decidethat other question (also a question of fact) ; What was the intentionof the accused when he inflicted those injuries ? ”
We felt unable to agree with the submission of Crown Counsel. Whilethe passages he pointed to laid down the position correctly so far as itdepended on Amaradasa’s evidence, they did not relate specifically to theevidence relied on by the defence. If the evidence called by the defence,,be it of the nature of an alibi or otherwise, was not capable of acceptance^or rejection, the impact of the uncertainty on that point must surely be*to raise a reasonable doubt as to the identity of the assailant, and wewere therefore of opinion that it was imperative for a trial judge to givea jury a specifio direction thereon.
For the reason we have expressed above, we allowed the appeal and"quashed the conviction of the appellant. We did not think it fit to ordera new trial in this case as the evidence of the only witness, Amaradasa,was of an unsatisfactory nature. He had to admit that while he waitedby his injured father for about a quarter of an hour till a car was broughtto take the latter to hospital he refrained from telling the witness Nomiswho had come up to the spot the name of his father’s assailant. He couldgive no satisfactory reason—to use the learned trial judge’s own words—-for this self-imposed silence. Amaradasa was proved to have stated atthe Magisterial proceedings that his father had other enemies like Suwarisand Thepanis, although he stated at the trial that these two persons haddied before the day his father was killed. We observed also that certaininadmissible evidence had been elicited at the trial through the witnessEllen that she heard people going past her house shouting that Panditha-ratne had been stabbed by Yahouis, which latter is the name of the appel-lant. These were by no means shouts of bystanders and therefore did notcome within the category of relevant facts admissible under section 6 orany other section of the Evidence Ordinance.
Conviction quashed»