AL.I.ES, J.—Fr i'll undo u. The State
[Court of Criminal Appeal]
1972Present: Alles, J. (President), Thamotheram, J., andWlmalaratne, J.K. M. J. FERNANDO ami 3 others, Appellants, and THESTATE, Respondent
C. C. A. 105-108/71, with Applications 142-1458. 0.109/71—M. C. Panadum, 19100
Offensive Weapons Act No. 18 of 19GG—Sections 2(1), 3, 13—“ Offensive weapon ”—Burden of proof—Weight of fiorernment A nalyst's eridence—Misdirection.
In a prosecution before the Supremo Court for using or possessing an offensiveweapon in contravention of section 3 or section 2 (1) of the Offensive WeaponsAct, the question whether the weapon used or possessed was an “offensiveweapon ” should be left to the jury to decide. It would be a misdirectionin law to tell the jury that the evidence of the Government Analyst is conclusiveon this question.
Appeals against four convictions at a trial before the Supreme Court.
O.E. Chitty, Q.C., with G. E. Chitty (Jnr.) and (assigned) IF. J. Perera,for the 1st and 4th accused-appellants.
M. A. Mansoor, with S. J. Mohideen and (assigned) W. J. Perera,for the 2nd and 3rd accused-appellants.
Sunil de Silva, for the State.
Our. adv. vult.May 24, 1972. Alles, J.—
The four appellants were charged and convicted on an indictmentcontaining four counts. On the first count the 1st appellant was convictedof throwing an explosive bomb at premises No. 14, Station Road,Moratuwa and causing damage to the property of PahalamandadigeThomas Fernando, an offence punishable under Section 3 of the OffensiveWeapons Act No. 18 of 1966. On the second count the 2nd, 3rd and 4thappellants were convicted of abetting the 1st appellant to commit theoffence Bet out in count 1. On the 3rd count the 4th appellant wasconvicted of being in possession of an explosive bomb, without lawfulauthority, an offence punishable under Section 2 (1) of the OffensiveWeapons Act and on the 4th count the 2nd and 3rd appellants wereconvicted of causing mischief under Section 410 of the Penal Code tomotor car bearing registration No. EN. 4759, belonging to Thomas.Fernando.
ALLES, J.—Fernando v. The State
On these convictions the appellants were sentenced to varying terms ofimprisonment.
At the conclusion of the argument in appeal we set aside the convictionsof all the appellants and directed a retrial on the same charges. Wenow set down the reasons for our order.
The evidence accepted by the Jury established that the four appellantstogether with the discharged fourth accused came at about 5 p.m. to theorange barley boutique of P. T. Fernando and demanded ‘ Kappan ”at the rate of Rs. 50 per day. It transpired in evidence, thatbesides running this boutique, the complainant P. T. Fernando wasalso engaged in the lucrative business of accepting illegal bets and receiveda considerable sum of money daily, sometimes between Rs. 1,500 andRs. 2,000 a day.
According to P. T. Fernando he refused to make any payments to theappellants. About 7 p.m. the same day while Fernando was insidehis closed boutique, the appellants again arrived on the scene and the1st appellant hurled an explosive about the size of a condensed milktin at his front door causing damage i o his boutique. The other appellantswere present and Fernando saw an “ explosive ” in the hands of the 4thappellant. He concealed himself and peeped through the plank doorsand saw the 2nd and 3rd appellants damaging his car by striking it withclubs. A second explosion occurred soon afterwards and the appellantsthen left the scene. His evidence was supported by that of SunnieFernando.
Wien Inspector Silva of the Moratuwa Poiice arrived on the scenesome time later he found the lower portion of the middle shutter of thefront door damaged and he got a strong smell of burnt sulphite. He alsotook charge of some shrapnel, nails, panel pins, stones and glass all ofwhich he collected and produced in Court. He thereafter moved thatthese productions be forwarded to the Government Analyst forexanimation and report. Mr. Humzah, the Assistant Government Analyst,also visited the scene and gave a detailed account of his observationswhen he testified in Court.
An essential ingredient of the offences under the Offensive WeaponsAct, which had to be proved beyond reasonable doubt by the prosecution,was whether the missile hurled by the first appellant and the article inthe possession of the fourth appellant were “ offensive weapons ” withinthe meaning of the Act. The prosecution relied on the GovernmentAnalyst’s report which was countersigned by Humzah and the evidenceof Humzah to establish this fact. An “ offensive weapon ” under theAct has been defined as—
“ a bomb or grenade or any other device or contrivance made for a
use or purpose similar to that of a bomb or grenade. ”
ALLES, J.—Fernando v. The State
This being essentially a question of fact the burden of which lay on theprosecution, the prosecution sought to discharge this burden by producingthe report Pll and leading the evidence of Humzah. The ultimateconclusions of the Analyst in PI 1 were to the following effect:—
“ Spent residues of mixture of potassium chlorate and arsenicsulphide were identified on—
panel pins and staples in PI,
on the sweepings,
on the stones and on some of the pieces of glass in P3, and
on the pieces of plank in P5 and P6.
The panel pins and the staples in PI, the stones and some of the piecesof glass in P3 constitute the debris of a handbomb, which is an offensiveweapon as defined in the Offensive Weapons Act No. 18 of 1966.”
This is evidence that can properly be given by an expert in a criminalproceeding and on which the jury were entitled to act. Humzah gaveevidence in detail and was cross-examined at length by learned Counselfor the appellants. But however conclusive this evidence may appearto be, this is a question of fact for the jury and the cross-examinationof Humzah which extended over eleven pages of typescript indicatedthat the defence challenged some parts of his evidence. Unfortunatelythe learned Commissioner in his charge withdrew from the considerationof the jury this essential question of fact and treated the expert evidenceas evidence which the jury were bound in law to accept. Section 15 ofthe Act does permit the admission of a certificate of the Analyst asevidence on which the jury are entitled to act even in the absence of theAnalyst as a witness. But even in such a case the Analyst may be calledas a witness at the instance of either party. The law therefore does nottreat the Analyst’s evidence as being conclusive. In the course of thecharge dealing with the expert evidence the learned Commissioner gavethe following directions :—
“ So that a very essential and vital ingredient has been proved by theAnalyst’s evidence and.by his report Pll . . . The evidence of theAssistant Government Analyst is what is called scientific evidence andin law that type of expert evidence is accepted as infallible . . .
So that his evidence cannot be challenged at all. His evidence has to beaccepted and his evidence is that the productions that were shown tohim as having been collected from the scene of the offence were thedebris of a handbomb. ”
This is clearly a misdirection in law because the defence did in factchallenge the Analyst’s evidence. As a result of this misdirection thedefence has been prejudiced because they were entitled in law to havethis question of fact, decided- by the jury. ■ It is iio answer to thip
Suntharalingam v. Attorney-General
misdirection to maintain that the evidence of the Analyst was of such acompelling nature that the jury would in all probability haveunhesitatingly accepted his evidence.
The charge of mischief being so closely connected with the offencesunder the Offensive Weapons Act and depending as it does on thecredibility of the prosecution witnesses we think the fairest course isto order a retrial on all the charges.
Case sent back for retrial.
K. M. J. FERNANDO and 3 others, Appellants, and THE STATE, Respondent