074-NLR-NLR-V-37-KING-v.-ATTYGALLE-et-al.pdf
337
Delivered by the LORD CHANCELLOR.—King v. Attygalle.
[In the Privy Council.]
1936 Present : Lord Chancellor (Viscount Hailsham), Lord Maugham,
and Sir Sidney Rowlatt.
KING v. ATTYGALLE et al.
In the Matter of a Petition for Special Leave to appeal.
6—P. C. Kandy, 44,7.62.
Privy Council—Special leave to appeal from conviction—Misdirection of laur
not a ground for leave—Deprivation of substance of fair trial and protec-tion of law must be shown—Burden of proof—Evidence Ordinance,No. 14 of 1895, s. 106.
Misdirection with regard to the law does not afford sufficient groundof itself for granting special leave to appeal to the Privy Council from aconviction.
There must be something which in the particular case deprives theaccused of the substance of fair trial and the protection of the law orwhich in general tends to divert the due and orderly administration ofthe law into a new course which may be drawn into an evil precedentin the future.
It is not the law of Ceylon that the burden is cast upon an accusedperson of proving that no crime has been committed.
ETITION for special leave to appeal to the Privy Council
-L from a conviction after trial before a Judge and Jury at theMidland Assize at Kandy*.
Hallet. K.C., L. M. de Silva, K.C. (with S. Chapman), for petitioners.Kenelm Preedy, for the Crown.
March 26, 1936. Delivered by the Lord Chancellor.—
This is a case which has given their Lordships considerable trouble.The prosecution was against the first accused for performing an illegaloperation, and against the second accused for abetting him in that crime.
At the trial the learned Judge gave a direction to the jury, to whichexception has been taken by Mr. de Silva in a very clear and helpfulargument, and in which the learned Judge explained to the jury his viewas to the burden of proof based upon his construction of section 106 ofOrdinance No. 14 of 1895 in the Ceylon Code. That section enacts'.hat when any fact is especially within the knowledge of any person,the burden of proving that fact is upon him. With reference to thatsection the learned Judge told the jury that :
“ There is a section which is really the basis of circumstantialevidence so far as it occurs in Ceylon; that section says when any factis especially within the knowledge of any person, the burden of provingthat fact is upon him; Miss Maye ”—that is the person upon whom theoperation was alleged to have been performed—“was unconsciousand what took place in that room that three-quarters of an hour thatshe was under chloroform is a fact specially within the knowledge ofthese two accused who were there. The burden of proving that fact,the law says is upon him, namely, that no criminal operation tookplace but what took place was this and this speculum examination.”
P
* 37 N. L. B. 60.
338
Delivered by the LORD CHANCELLOR.—King v. Attygalle.
Their Lordships are of opinion that that direction does not correctlystate the law. It is not the law of Ceylon that the burden is cast uponan accused person of proving that no crime has been committed. Thejury might well have thought from the passage just quoted that that wasin fact a burden which the accused person had to discharge.
The summing-up goes on to explain the presumption of innocence infavour of accused persons, but it again reiterates that the burden ofproving that no criminal operation took place is on the two accused whowere there.
If their Lordships thought that the refusal of leave to appeal in thiscase could be construed as an acceptance of that doctrine, they would bevery slow to reject the petition which has been brought before them.But, in fact, the circumstances of the case have been explained to theirLordships, and they are satisfied that on the facts that were explainedhere, there were circumstances pointing irresistibly to the guilt of theaccused quite independently of this direction.
It has been repeatedly stated in a series of authorities that theirLordships do not sit as a Court of Criminal Appeal; that the mere factthat there has been some mistake of law does not afford sufficient ground ofitself for granting special leave to appeal. Lord Sumner in a well knownpassage in the case of Ibraham v. The King1 pointed out that “misdirec-tion as such, even irregularity as such, will not suffice. There must besomething which in the particular case deprives the accused of thesubstance of fair trial and the protection of the law, or which in generaltends to divert the due and orderly administration of the law into a newcourse which may be drawn into an evil precedent in future ”.
The latter danger, it is hoped, is sufficiently guarded against by theobservations which their Lordships have thought it right to make. Ithas been suggested by Mr. de Silva that the judgment in the recent caseof Lawrence v. The King in some way modified or altered that statementof the law. Lawrence v. The King is a case in which the actual decisionwas plainly within the authority of previous cases, because their Lord-ships held that sentences had been pronounced which were outside thepower of the tribunal which purported to pronounce them. It may bethat the precise language of the judgment may have to be consideredon a more suitable occasion. It is sufficient to say that the judgmentthen pronounced did not purport to depart in any way from the wellsettled principles which have been laid down in previous authorities andcannot be allowed to be construed so as to depart from those principles.
In all the circumstances of this case their Lordships do not feel justifiedin humbly advising His Majesty to grant special leave to appeal, becausethey are satisfied that there has been no such substantial injustice,no such deprivation of the substance of fair trial as the cases show to benecessary in order to justify the granting of such leave. At the sametime their Lordships want to make it clear that that refusal does notimply an endorsement of some of the language of the summing-up,language which perhaps would not seem quite so urifavourable to theaccused if it is taken as a whole and not divorced from the context in1 H014) A. C. 599.2 (1933) A. C. 699.
Commissioner of Income Tax v. P. K. N.
839
which it appears. But as stated in the passages ,to which attention hasbeen called the statement of the law is incorrect, and nothing that hashappened on this petition must be understood as affording any approvalof its language.
Their Lordships will accordingly humbly advise His Majesty that thepetition be refused.
„Petition refused.