089-NLR-NLR-V-77-KARUNARATNE-and-another-V.-THE-STATE.pdf
Karunaratne v. The State
627
Present: Sirimane, J., Malcolm Perera, J. andWeeraratne. J.KARUNARATNE and another v. THE STATE
S. C. 79-80/74—M. C. Kurunegala—39
Burden of proof—Misdirection by trial judge—Propriety of theconviction.
The two accused—appellants were found guilty by the unani-
?
ious verdict of the jury of the murder of A, and were sentencedo death. The case for the prosecution rested entirely on the
evidence of N who testified that he was a witness to the killing.The two accused who gave evidence denied the charge.
The trial judge directed the jury thus :—“ So you have now todecide whether you are cfeciding to accept the 1st accused’s evi-dence or the 2nd accused’s evidence or Norman’s evidence… .Thedefence has a lesser burden to discharge. It need not prove beyondreasonable doubt. It is sufficient if the defence proves on a balanceof probability that the defence version is true. The defence hasnot told us how the girl came by her death. Both accused havestated that the girl was alive at the time they left.”
Held : The summing up above, wrongly placed a burden on theaccused as it would have led the jury to think that:
(i) there was a burden on the accused to prove on a balance ofprobability their denial ;
(ii) there was a burden on the accused to show how the deceasedcame by her death.
“This is clearly a misdirection on so fundamental a matter asthe burden of proof that the conviction cannot be allowed tostand ”i
Obiter—“ Whenever the question of * common intention ’ arises,it must be clearly explained to the jury and distinguished from* similar intention ’.
52S
SIRIMA-NVE, J.—Karunaratne v. The State
Appeal against conviction.
M. Mousoof Deen with P. B. T. B. Bullumulla (Assigned) for1st accused appellant.
P. B. T. B. Bullumulla, (Assigned) for 2nd accused—appellant.Ranjit Gunatilleke, Senior State Counsel for Attorney-General.
April 17, 1975. Sirimane, J.—
The two appellants were found guilty by the unanimousverdict of the jury of the murder of one Amarangani ^nd weresentenced to death. The case for the State rested on the evidenceof one Norman. The facts according to this witness (shorn ofdetails) was that the 2nd accused brought a message for the 1staccused from the deceased saying that she was willing to elopewith the 1st accused. Thereafter Norman and the two accusedleft by car and picked up the deceased from the house of the 2ndaccused and took her some distance, alighted from the car andwalked further to some spot where the two accused had sexualintercourse with the deceased. The 1st accused then suddenlysaid that the deceased must be killed and in spite of Norman’sprotests stabbed the deceased twice on her chest with a knifehaving first ordered the 2nd accused to gag the deceased withher saree to stop her cries. The 1st accused gave evidence andadmitted that they took the deceased as stated by Norman butstated that after they had sexual intercourse and wanted to goaway Norman said he was not satisfied and wanted to havemore sex. The two accused then came away leaving Norman andthe deceased. The 2nd accused also gave evidence and admittedhaving gone with the deceased as stated by Norman but statedthat after the 1st accused had sex with the deceased he toowanted to have sex. but the deceased struggled and protested.He then left the deceased, Norman and the 1st accused and wentaway.
The learned Trial Judge in his summing-up to the Jury sum-marised the evidence of Norman and the two accused and said : —
“ Now you have three versions. It is up to you to decidewhich version is true. ”
SIRIMANE, J.—Karunaralne v. The State
529
He then proceeded to address the Jury on the question as towhether Norman was an accomplice and thereafter stated :
“ So you have now to decide whether you are deciding toaccept 1st accused’s evidence or 2nd accused’s evidence or
Norman’s evidence The defence has a
lesser burden to discharge. It need not prove beyond rea-sonable doubt. It is sufficient if the defence proves on abalance of probability that the defence version is true. Thedefence has not told us how the girl came by her death. Bothaccused have stated that the girl was alive at the time they
left. ”
•
*The two accused by their evidence denied the killing of thedeceased and the learned Trial Judge’s summing-up abovequoted has wrongly placed a burden on the accused as it wouldhave led the Jury to think that,
there was a burden on the accused to prove on a balance
of probability their denial.
there was a burden on the accused to show how the
deceased came by her death.
This is clearly a misdirection on so fundamental a matter asthe burden of proof that the conviction cannot be allowed tostand.
The learned Trial Judge later in his summing-up addressedthe Jury on the question of intoxication though this plea was nottaken by the defence and (rightly) stated that the burden was onthe accused to show on a balance of probability that they hadreached that degree of intoxication which made them incapableof forming a murderous intention. In view of this and the earlierpasjage cited from the learned Trial Judge’s summing-up theJury may well have thought that there is always a burden ofproof (though a lesser one) on the accused either on the mitiga-tory plea of intoxication or on the exculpatory plea of denial.When such defences arose cn'the evidence it was the duty of thelearned Trial Judge to clearly explaip to the Jury that thelesser burden of proof on the accused is only in respect of thermtigatory plea and that there is no burden whatever on theaccused to “prove” their denial.
530
SlRIMAKii, J.—Karunaratne v. Tlte State
Learned senior State Counsel whilst conceding that the passagequoted earlier is a misdirection has pointed out to anotherpassage which follows the passage cited.
“ If you hold that what they (accused) say is true then youwill acquit the accused because the girl had not been killedby the 1st and 2nd accused and they have left the place ; orif you hold that the evidence of the 1st and 2nd accused hascreated a reasonable doubt hi your mind you will acquit theaccused. But if you hold the defence version is neither truenor has it raised sufficient doubts in your mind then you will
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accept Norman’s evidence. ”
Here too though the earlier part is a coriect direction the wordsunderlined are misleading as the rejection of the defence versiondoes not necessarily mean that Norman’s evidence is true. How-ever that may be when there is a clear misdirection on a mattersuch as the burden or proof followed by a correct direction, itwould be wrong to assume that the Jury ignored the misdirec-tion and acted on the correct direction. In a case such as thiswhere the only evidence against the accused was that of Nor-man, placing a wrong burden on the accused may well havetiltel the scales against them.
We would also wish to state that whenever the question of“ common intention ” arises it must be clearly explained to theJury and distinguished from “ similar intention. ”
For these reasons we quash the conviction and sentence andorder a re-trial.
Malcolm Perera, J.—I agree.Weeraratne, J.—I agree.
Convictions quashed and caseremitted for re-trial.