L. S. PREMATILLEKE, Appellant, and THE REPUBLIC OF SRI LANKA, Respondent

093-NLR-NLR-V-75-L.-S.-PREMATILLEKE-Appellant-and-THE-REPUBLIC-OF-SRI-LANKA-Respondent.pdf


600
Prematilleke v. The Republic of Sri Lanka
[Court of Criminal Appeal]
1972 Present : G.P.A. Silva, S.P.J. (President), Wijayatilake, J.,and Walgampaya, J.S. PREMATILLEKE, Appellant, and THE REPUBLIC OFSRI LANKA, Respondent
C. C. A. Appeal No. 70/72, with Application No. 59S. C. 117172—.M. C. Matara, 51785
Trial before Supreme Court—Non-summary proceedings prior to 22nd May lf>72—Election by accused to be tried by an English-speaking jury—Commencementof trial after new Constitution of Sri Lanka (Ceylon) came into operation on22nd May 1972—Wish of accused then to be tried by a jury proficient in Sinhala—Empanelling the Sinhalese jury from among those summoned for service asEnglish-speaking jury—Irregularities in procedure—Summing-up in Sinhala—Interpretation of it into English—Whether the proceedings were vitiated by theirregularities—Court of Criminal Appeal Ordinance {Cap. 7), Proviso to s.5(l)—"Substantial miscarriage of justice"—Consecution of Sri Lanka {Ceylon),ss. 7, 9, 11, 11 {6)—Criminal Procedure Code, is. 224, 224 (7), 254, 257, 261,281—Evidence—Validity of conviction based on circumstantial evidence—“ Accomplice ”—Limitations of the right of the Court of Criminal Appeal tolook into Police Information Book or the non-summary proceedings.
The indictment was originally served on the aco used-appellant on 26thFebruary 1072. On 22nd May 1972 the Constitution of Sri Lanka (Ceylon)oame into operation. Section 7 of the Constitution enacted that the SinhalaLanguage shall be the official language of Sri Lanka as provided for in theOfficial Language Act, No. 33 of 1966. As an immediate switch over to Sinhalain all respects in all the courts was quito impracticable, an Order was publishedon 23rd May 1072 under the provisions of Section 11(0) of the Constitutionpermitting, as a transitional provision, the continued use of the language inwhioh proceedings in any Court were conducted immediately before thecommencement of the Constitution.
Prematillelce v. The Republic of Sri Lanka
607
The accused bad elected, at the stage of his committal by the Magistrate,an English speaking jury for his tral. When the trial commenced on 10thJune 1972, the Judge inquired from Counsel for the Defence whether theaccused wanted to continue with his election to be tried by an English-speakingjury and was told that the accused wished to have his case conducted in Sinhala.At that time an English-speaking jury, for which the accused had originallyelected, were present in Court in compliance with the summons served on them.The Judge stated that he wished to verify from the jurors whether they wereable to understand proceedings in Sinhala. Accordingly, as each of six jurorswas drawn and came up to the jury box, the Judge put certain questions tohim and satisfied himself from' the answers given by the juror that he couldspeak, read and write Sinhala. In regard to the seventh juror, who was aSinhalese by race and an English Trained Teacher, the only question put tohim by the Court was whether he read the Sinhala newspapers and the replywas in the affirmative.
The summing-up was in Sinhala, and it was interpreted into Englishin the hearing of the jury.
Held, (i) that a reasonable inference that could be drawn from Section 7 ofthe Constitution coupled with the Order of 23rd May 1972 was that courtswere ordinarily expected to conduct proceedings in Sinhala if they werfccompetent to do so.
that there was no merit in the contention that the seventh juror, muchless any other juror, did not have the language qualification regarding proficiencyin Sinhala as contemplated by Section 264 of the Criminal Procedure Code.Even assuming that one of the jurors did not have the requisite qualification,Section 281 of the Criminal Procedure Code precluded the invalidation of theverdict by reason of that defect.
that, although, after the accused wished to be tried by a Sinhalesepanel of jurors, the requirements of Section 257 and related Sections, read withSeotion 224, of the Criminal Procedure Code were not complied with and therewas no specific provision for titer trial Judge to indulge in the inquiry whiohhe resorted to, the verdict could not be set aside on this ground in as much asthe accused had a jury of his choice and in view of the new constitutionalbackground in consequence of which Sinhala had to be the Language of the Courtof trial and English was only permissive for the conduct of proceedings. Theirregularity of empanelling the Sinhalese jury from among those summonedfor service as a jury proficient in the English language did not cause any*' substantial miscarriage of justice ” within the meaning of the proviso toSection 5(1) of the Court of Criminal Appeal Ordinance. The interpretationinto English of the Judge’s summing-up was only a superfluous procedureand did not in fact cause confusion in the minds of the jury, despite somediscrepancies.
The proviso to Seotion 5(1) of the Court of Appeal Ordinance does notpermit the Court to allow an appeal if, notwithstanding a wrong decision onany question of law or on any other matter, the Court considers that nosubstantial miscarriage of justice has actually occurred. In the presentcase there was no good ground to refrain from applying the proviso afterconsidering both the evidence and the substantially correct summing-up as wellas the procedure not specifically authorised by the Code.
Held further, (a) that a conviction could be based upon the telling evidenceof a mass of eloquent circumstances when such circumstances remainunexplained by the accused.
608
G. P. A. SILVA, S.'ir'.J.—Prematilleke v. The Republic of Sri Lanka
(6) that the evidence of an eye-witness to an offence need not necossarilybe regarded as that of an accomplice requiring corroboration merely because heiB a belated witness and was a suspect in the custody of the Police when hemade his statement to the Police implicating the accused.
(c) that the Court of Criminal Appeal would be acting improperly if, inallowing an appeal or altering the verdict of the jury, it is influenced by adetailed perusal of the Police Information Book or the non-Bumraary proceedingswhich the jury had no opportunity at all to consider, except in a rare casewhere there has been a substantial miscarriage of justice owing to some vitalmaterial escaping all concerned during the trial which, had it been beforethe jury, would, in all probability, have made a difference to the verdict.
.A.PPEAL against a conviction at a trial before the Supreme Court.
O.E. Chitty, with 0. E. Chitty (Jnr.), Asoka Abeysinghe and/. Muttiah(assigned), for the accused-appellant.
N. Tittawella, Deputy Solicitor-General, for the State.
Cur. adv. wit.
December 8, 1972. G. P. A. Silva, S.P.J.—
The accused-appellant in this case was indicted with having committedthe murder of one Dinis alias Gunadasa on the 13th of April, 1970,and was convicted by a verdict of 6 : 1 of that charge. The course thatthe trial took gave rise to several important matters of law which wereraised by counsel for the appellant apart from the substantial grounds ofappeal relating to the charge to the jury. I shall therefore deal withthese matters in the Erst instance.
It is useful to enumerate the circumstances which led to this situation.The original indictment the parties to which were the Queen and SarathPrematilleke, and which was served on the accused was sent in the nameof Her Majesty’s Attorney-General on the 26th of February, 1972.On the 22nd May, 1972, this country adopted and enacted through theConstituent Assembly of the People the new Constitution called theConstitution of Sri Lanka (Ceylon) to be in operation with immediateeffect. Section 7 of this Constitution enacted that the official languageof Sri Lanka shall be Sinhala as provided for in the Official Language Act,No. 33 of 1966 which stated, inter alia, that the Sinhala Language shallbe the official language of Ceylon; Section 9 required all laws to beenacted in Sinhala and Section H made it obligatory for the languageof all the Courts and Tribunals empowered by law to administer justiceto be in Sinhala and for the maintenance of all their records in Sinhala.Section 11 contained a proviso permitting the National State Assemblyto provide otherwise in the case of institutions exercising original jurisdic-tion in the Northern and Eastern provinces, and, for the purpose of thiscase, it is unnecessary to embark upon an interpretation of this proviso.
(3. P. A. SILVA, S.P.J.—Prematilleke v. The Republic of Sri Lanka
SOD
While subsequent sub-sections of Section 11 enable translations intoSinhala or Tamil in certain circumstances, even the word “ English 'does not find a place in this section. It is only by implication that theuse of English may be said to have some place in judicial proceedings inthat the provisions in Section 11(6) empower the Minister in chargeof the subject of Justice, with the concurrence of the Cabinet of Ministers,to issue any Order or Direction permitting the use of a language otherthan Sinhala or Tamil by a Judge or other State Officer administeringjustice in any Court or Tribunal. Such an Order was in fact made andpublished in Gazette Extraordinary No. 2 of 23rd May, 1972 the verynext day after the promulgation of the new Constitution, permitting thecontinued use of the language in which proceedings in any Court, Tribunal,Board or Institution were conducted immediately before the commence-ment of the Constitution. It will be noted that even this Order does notcompel but only permits the use of the language used immediatelybefore the Constitution. If therefore English w as used for the conduct ofproceedings in any Court before the 22nd May, it could have beencontinued thereafter. The effect of the Section however is that the use ofSinhala is made obligatory in Courts of law by the Section itself and aCourt which used English earlier, while maintaining it's records in Sinhala,was permitted to continue to use English if it wished. Paragraph (3)of the Order makes it fairly clear that the Order was intended as a transi-tional provision to be modified or revoked by a further Order and that theobject of this Order, which, in the circumstances, was both prudent andtimely, was to prevent a dislocation of work in the Courts. As animmediate switch over to Sinhala in all the Courts of the Island wasquite impracticable, the issuing of this Order bv the Minister of Justiceon the 23rd May itself was absolutely necessary. However, areasonable inference that may be drawn from the Section coupled withthe Order is that courts were ordinarily expected to conduct proceedingsin Sinhala if they were competent to do so.
The trial Judge in the instant case no doubt took this view when hecommenced the hearing of this case on the 19th of June, 1972, and thestep he took would have attracted much less criticism had he not adoptedthe somewhat inconsistent procedure of having his Sinhala charge inter-preted into English and such interpretation, we are informed by theDeputy Solicitor-General, was done in the hearing of the jury. Theprocedure he followed clearly indicates an effort to comply with theconstitutional provision and the decision he .reached is therefore notopen to any serious objection. He had however to contend with certainprovisions of the Criminal Procedure Code relating to Supreme Courttrials and it is the course he adopted to reconcile these provisions with therequirement of the Constitution that attracted the first major criticism ofcounsel for the appellant. The learned Deputy Solicitor-General whoassisted the Court on behalf of the State, preliminarily to meeting thisargument, made out a strong case for this Court to approach this questionand the matters surrounding it in the background of the fundamentalconsideration that this Court will not interfere with a verdict of a jury
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G. P. A. SILVA, S.P.J.—Prematillekev. The Republic of Sri Lanka
even if there are any errors of law in procedure or otherwise ifno substantial miscarriage of justice has actually occurred as a result ofsuch errors.
From the first question that the trial Judge asked from the defencecounsel at the very inception of the case it is clear—and it was indeedcommon ground even in this Court—that the accused had elected anEnglish-speaking jury for his trial at the stage of his committal by theMagistrate. It is also clear from the Judge’s question that he tookthe precaution of asking counsel to inquire from the accused w'hctherhe wanted to continue with his election to be tried by an English-speakingjury as he had originally done, in which event the case will be conductedin English. It is important to note that the trial Judge did not evenindicate any preference on his part to conduct the trial in Sinhala normake any such suggestion to counsel for the defence. Indeed, if therewas any indication it was to the effect that if the accused elected to do so“the trial will be conducted in English ”. The answer of counsel forthe defence, which must be presumed to have been given after consultingthe accused was :
“ He wishes to have his case conducted in Sinhala .”
From the next observation of the trial Judge it w'ould appear that anEnglish-speaking jury, which the accused had originally elected for,were present in court having been duly summoned to serve and that thetrial Judge wished to verify from the jurors whether they were able tounderstand proceedings in Sinhala. Thereafter, the inference to bedrawn from the record of proceedings is that, as each juror was drawn andcame up to the jury box, the trial Judge put certain questions to himin order to satisfy himself of the juror’s ability to understand theproceedings in Sinhala. It is also an irresistible inference from theanswers given by the jurors that the learned trial Judge had, presumablyfrom the Clerk of Assize and/or the Fiscal, obtained some informationof the proficiency in Sinhala of each of the entire panel of jurors w'howere summoned to serve during the period when this case was taken up.From the questions' addressed to each of the jurors and the answerssupplied by them it is a reasonable presumption that six of the sevenjurors empanelled for the trial could not only speak; read and writeSinhala—which qualifications among other things, made them liableto serve on a Sinhala panel of jurors in terms of Section 254 of the CriminalProcedure Code but that they had a working knowledge .in Sinhala.In regard to the other juror, the only question put to him by the Courtwas whether he read the Sinhala paper and considerable time was takenup by counsel for the appellant, among his numerous other arguments,to persuade this Court that this question and answer alone did not showthat this juror had the requisite qualifications regarding proficiencyin Sinhala as contemplated by Section 254 of the Criminal ProcedureCode. To my mind, one can conceive of a case where a person is afluent speaker in a particular language but is altogether unable to reador write that language. One has almost to take leave of one’s senses
G. P. A. SILVA, S.P.J.—Prematilleke v. The Republic of Sri Lanka
511
however , to conclude that a person who can read the newspapers in aparticular language cannot speak that language. A slightly less degreeof unrealistic imagination would perhaps enable one to infer that aperson who can read the newspapers cannot write that language ; butI do not think that a Court can reasonably take such a view regardingthis one juror about whom there has been this controversy, havingregard to the following among other reasons :—
the name of the juror is Udugampola and this Court comprising
three Judges born in this country would not be permitted tohold that Udugampola is not a Sinhalese by race ;
by profession, he is an English Trained Teacher and it is incredible
if, with the Official Language Act in force from 1956 and withhis habit of reading the Sinhala newspapers, he lived in a worldof his own not taking cognizance of the accent placed on' Sinhalaafter this Act, the requirement to attain a certain standardof proficiency in Sinhala on pain of stoppage of increments—amatter which must have been highlighted repeatedly in the verySinhala newspapers which he used to read ;
the high improbability of his having followed the suicidal policy
of not acquiring at least some degree of proficiency in Sinhalaand running the risk of being discontinued from service withthe imminent possibility of education in this country switchingover completely to the two streams of Sinhala and Tamil onlywith English having no place.
Apart from the highly inherent improbability of a trained teacher whoreads the Sinhala newspapers being unable to speak and write thatlanguage and the above reasons which militate against the contention ofcounsel that the trial Judge’s questioning did not show that Mr. Udugam-pola answered the requirements of Section 254 of the Criminal ProcedureCode, a Court has necessarily to take a look at the other circumstancesin regard to tliis submission. The observation of the trial Judge thatpreceded the empanelling of jurors that he will have to verify from thejurors whether they were able to understand the proceedings in Sinhalamust be presumed to have been heard by the jurors who were seated inthe well of the Court. They witnessed the wholo exercise that the Courtwas going through and would have followed the questions put by thetrial Judge and the answer of counsel. It can fairly be assumed thereforethat, the juror concerned being an English trained teacher, would -havehad sufficient sense of responsiblity to inform the trial Judge if he wasnot proficient enough in the Sinhala language to be able to understandthe proceedings. He did not do so. There is also the circumstance thatdefence counsel, Mr. Sumita Dahanayake, did not raise any. point ormake any complaint regarding the insufficiency of Mr. Udugampola’aknowledge of Sinhala at any stage of the trial proceedings, nor has sucha point been taken up in the petition of appeal among the grounds,even though a complaint was sought to be made or at least suggested
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G. P. A. SILVA, S.P.J.—Prematilleke u. The Republic o/ Sri Lanka
in regard to the inadequacy of the Sinhala of the trial Judge in conveyingcertain legal concepts relevant to this case. These reasons persuade usto the conclusion that there is no merit in the complaint that the jurorUdugampola, much less any other juror, did not have the languagequalification that was necessary for them to serve in a Sinhala panel ofJurors.
It is perhaps relevant to mention in this connection that Section 281of the Criminal Procedure Code precludes the invalidat ion of any judgmentor verdict inter alia owing to a defect, error or disqualification of a juror.This provision shows that even if one juror had some disqualificationdue to an error in the jury list prepared by the Fiscal, a judgment arrivedat by a jury which includes such juror cannot be held illegal. Muchless therefore can the verdict in tills case be set aside, even if one of thejurors is not proved to have had the requisite qualification in view ofwhat I have stated regarding juror Mr. Udugampola.
I come now to the other criticisms regarding the jury which too werenot raised either at the trial or in the grounds of appeal. I must say herethat the Deputy Solicitor-General deliberately refrained from takingup the objection that counsel for the appellant was not entitled to raisematters not stated in the petition of appeal. It was submitted by learnedCounsel for the appellant that the right that an accused enjoyed for anelection of a jury was denied to the appellant. The argument proceededon the basis that when Counsel for the Defence, after consulting theaccused, stated in the trial court that the accused wished to have thecase conducted in Sinhala, the accused in effect elected to be tried by aSinhalese panel of jurors, having by implication withdrawn his electionto be tried by an English (speaking) Jury at the non-summary inquiry.He was thereafter entitled to a trial by a Sinhalese Jury as providedfor in section 257 and related sections, regarding the qualifications anddisqualifications for being jurors, read with section 224 of the CriminalProcedure Code. The preparation of jury lists in English, Sinhalese andTamil was a function that devolved on the Fiscal. The preparation of apanel of jurors to be summoned for attendance arid service as jurors atany criminal sessions should be done by an appropriate officer of theCourt before a Judge of the Supreme Court in terms of section 261 ofthe Criminal Procedure Code. Such panel can therefore be prepared fromeach of the lists of English, Sinhalese or Tamil, as the case may bo,furnished by the Fiscal. When the accused in this case in effect eleotedthat his trial should be before a Sinhalese jury, such a jury should havebeen summoned for service and seven of them should have beenempanelled for the trial of the accused in terms of section 224(1). Itwas thus wrong for the trial judge, without following this procedure, toconvert as it were an English pane) of jurors to a Sinhalese pane) in theway he did and the trial which proceeded thereafter was illegal. Thatthe trial judge did not have, in law, any power to question jurors as totheir competence in Sinhala and that there was no guarantee of thejurors having truthful answers to the judge also formed part of thissubmission.
0. P. A. SILVA, S.P.J.—Prematillekc t>. The Republic of Sri Lanka
513
There is, of course, no doubt that the foregoing provisions which Counselfor the Appellant referred to were not complied with in this case and that■.here was no specifio provision for a trial judge to indulge in the inquirywhich he did. But the question as to whether the verdict should be setiv-ide on this ground is one which demands the consideration of a seriesof other matters which I shall endeavour to deal with presently.
In considering this matter, it is necessary to remember the salient factthat six of the jurors were oh their own answers given to the judge—
I have no reason to think that the answers were false—qualified to serveas Sinhalese jurors and to be inoluded in the list of Sinhalese jurorsprepared by the Fiscal in terms of Section 257 and that the questionsput by the judge helped to elicit material which went far beyond theinformation that the Fiscal would have ordinarily had regarding thelanguage qualification of the jurors for the purpose of inclusion in theSinhalese list of juTors. In regard to the seventh juror Mr. Udugampolatoo, for the reasons stated above, if one takes a realistic view, it is mostunreasonable to think that he would not have been able to speak, readand write the Sinhala language or that he would not have known sufficientSinhala to understand the Sinhala proceedings. The second considerationto bear in mind is that, even though Section 254 contains the wordsrequiring ability to speak, read and write, the purpose intended to .beserved thereby is that only a person who can understand and follow theproceedings in a particular language, English, Sinhalese or Tamil shouldbe called upon to serve on such a jury.
In this connection I might observe, even though it is not necessaryfor the purpose of this case, that if a person is qualified in terms of languageto serve on a Sinhalese jury as well as a Tamil jury or English, Sinhaleseand Tamil jury, the proviso to Section 257 does not appear to be intended •to disqualify him from serving on two or all three such juries, if he iswilling to do so. For, the proviso deals with only liability to serve.The last few words of this proviso “ unless such person, with the leaveof the presiding judge, shall consent thereto ” taken in conjunctionwith the preceding words strongly indicate that a person, qualified inmore than one language, may serve on more juries than one but is notliable or compellable to serve. The idea contained in the section appearsto proceed on the assumption of a possible reluctance on the part ofpersons qualified to serve as jurors and, for that reason, the law imposinga liability on such persons to serve, at the same time not imposing tooheavy a liability by obliging him to serve on more.juries than one for theonly reasons of being proficient in more than one language. I havehardly any doubt that there may be several persons proficient in morethan one language, who are anxious to serve on a jury for reasons of theirown, whose names are forwarded to the Fiscal in different lists and whosenames are therefore included by the Fiscal in more than one list thathe prepares even without knowing that he is doing so. If such inclusionhas taken place in a case where the person is unwilling to serve on morethan one jury the words of the proviso referred to would enable him
614■ G. P. A. SILVA, S.P. J.—Prematilleke v. The Republic o] Sri Lanka
to claim exemption from the Court on the ground that he is not liableto serve.
Yet another matter which must be remembered in this discussionis that, in an extreme case where a sufficient number of jurors is notavailable for a trial as a result of too many being challenged, the gapin the jury may even be made up, in terms of Section 224(7) of the CriminalProcedure Code, of several bystanders as are by law not disqualified.This provision shows that there is no special legal sanctity requiringany juror to go through the unavoidable sieve of the Fiscal but that aprocedure has been laid down to provide the machinery for ensuringthat there should be present in Court, when a trial is taken up,a certain number of qualified persons to serve on a jury of the accused’schoice.
The question then broadly is whether the accused in this case in facthad a jury of his choice. Having regard to the foregoing considerations,in particular, the possession in every juror of the requisite qualificationsin Sinhala to serve on a Sinhalese panel and the participation by theaccused and his counsel in the trial, not by reason of an enforced consent,but out of a desire 'willingly expressed and without a word of objectionat any stage up to the argument before this Court, the answer has to bein the affirmative.
Mr. Chitty supported the submissions on this point by citing to us thePrivy Council decision in the case of Hemapala v. The Queen1, 65 N.L.R.121 in which it was held that the accused having elected to be triedby an English-speaking jury, the conduct of the trial partly in Sinhalaso contravened the Criminal Procedure Code as to amount to amiscarriage of justice. The Counsel in that case addressed the juryin Sinhala without an interpretation into English and there was nocertainty from the record that the evidence given in Sinhala wastranslated into English in the hearing of the jury. The gentlemen ofthe jury through the foreman were questioned by the trial judge whetherthey were sufficiently conversant with Sinhala to be able to understandwell the questions put to witnesses and their answers as well as theaddresses and the foreman replied in the affirmative. The counselfor the defence too stated that he could understand the proceedingsin Sinhala. Their Lordships of the Privy Counsel in advising HerMajesty to allow the appeal did not hold that the trial was a nullitybut expressed the view that there were good grounds for holding thatthe way in which it was conducted resulted in withdrawing from theaccused a protection which the court was designed to secure, citingwith approval the following observation from Lord Goddard in
R.v. Neala (1949) 2 K.B. 590 ; (1949) 2 A.E.R 438:—
“ There is no doubt that to deprive an accused person of tbeprotection given by essential steps in Criminal Procedure amounts toa miscarriage of justice and leaves the Court no option but to quashthe conviction. ”
* {1903) 6S N. L. R. 121.
(1949) 2 K. S. 590 ; (1949) 2 A. E. R. 433.
G. P. A. SILVA, S.P..T.—Prcmalilleke v. The Republic of Sri Lanka
51S
It must however be stated that, so far aa our courts were concerned,the trial judge, who was no less a person than the present holder of theoffice of President of the Court of Appeal of Sri Lanka as well as theoffice of President of the International Commission of Jurists, consideredthe course he took at the commencement of the trial as one whiohwould not have resulted in any injustice to the accused and so did threeout of the five Judges of this Court which heard the appeal in the firstinstance.
As the facts relating to this aspect in the instant case differ considerablyin several respects from those of the Hemapala Case this Court is notcompelled to decide whether it is bound by an earlier decision of thisCourt consisting of five judges (though divided as 3:2) or by the PrivyCouncil decision. Having regard to the abolition of appeals to the PrivyCouncil and the provisions of the present Constitution, however, thequestion arises whether we are now bound by decisions of the PrivyCouncil, even though they would have strong persuasive force. I say so,of course, with the utmost deference to Their Lordships of the PrivyCouncil and with a deep sense of gratitude to them for theirundoubtedly high legal erudition which has immeasurably assisted andinfluenced the judicial thinking of generations of judges of this countryin the past.
Mr. Tittawella pointed out some of the differences between theHemapala Case and the instant case, namely, that each juror was notquestioned in the Hemapala Case in regard to his proficiency while itwas done in this case and that it was not the accused but the defencecounsel who consented to the conduct of proceedings in Sinhala in thatcase while it was not so in the instant case. On a reading of the reproduc-tion in the Privy Council judgment of what transpired before the trialjudge in that case it seems to me that there are more significant differencesbetween what transpired in the Hemapala Case and this case whichdistinguish one from the other. I give below the portion reproduced inthe Privy Council judgment:—
“ May I ask you, gentlemen of the jury, whether you are sufficientlyconversant with Sinhala to be able to understand well the questionsput to witnesses and answers given by them ? ”
Foreman : “ Yes, My Lord. ”
“ And also address of Counsel if it is made in Sinhala ? ”
Foreman: “ Yes. ”
Mr. Tampoe (who was Defence counsel), are you able to follow theproceedings in Sinhala 1 ”
Mr. Tampoe : “ Yes, My Lord. ”
“ You are at liberty to put any question in English at any stageof the case if you so desire and you will also be able to follow thetranslation which the interpreter will make for the benefit of the• stenographer.”
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G. P. A. SILVA, S.P.J.—Prematillekc u. The Republic of Sri Lanka
While these were the questions and answers in the Hemnpala Casein the instant case the question asked from Counsel to answer whichhe was requested to consult his client was whether the accused wanted“ to continue with his election in which case the case will be conductedin English The answer of Counsel could in these circumstancesonly have meant that the accused desired to change his election andhave his case tried in Sinhala. This answer to niv mind produced theessential difference in this case, namely, that the accused was tried by ajury empanelled in accordance with and not contrary to his choice.Had these been the questions and answers in the Hemnpala Case andhad they preceded the empanelling of the jury, coupled with everyjuror having been questioned in some detail as to the Sinhala proficiencywhich he possessed, in contrast to the foreman's answer in the HemapalaCase on behalf of all the jurors that they were sufficiently conversantwith Sinhala to be able to understand well the answers to questionsand the addresses of counsel, I doubt very much whether the PrivyCouncil could or would have held that the protection which the Codewas designed to secure, namely, tlie election to be tried by an Englishspeaking jury, was withdrawn from the accused. If such a finding wasnot possible as in the instant case, the bas.s on which the Privy Councildecided that the procedure amounted to a miscarriage of justice wouldhave been absent and I venture to think that the decision which dependedon this crucial question (as would appear from their argument at page 123)would have been otherwise.
I see yet another basic difference which one cannot overlook in arrivingat a decision on this matter, namely, that, the Hemapala trial took placewhen the Language of the Courts Act No. 3 of 1965 was in operation andwhen-the Court of trial had nob been declared a Court which shouldconduct proceedings in Sinhala. The resulting position was that Englishwas the lawful language of that Court. Tn the instant case, as I havestated earlier at the commencement, Sinhala had to be the languageof the Court of trial and English was only permissive for the conduct ofproceedings. The interpretation to be given to the legality of the trialin the instant case has therefore to be viewed in a different light andagainst a fundamentally different constitutional background.
The above considerations do not enable us reasonably to take theview that despite the agreed irregularity, if I may say so, of empanellingthe Sinhalese jury from among those summoned for service as an Englishjury, any miscarriage of justice haB occurred. Far less can it be saidthat any “substantial miscarriage of justice has actually occurred”from this irregularity, to use the very words of the proviso to Section 5of the Court of Criminal Appeal Ordinance. In view of the proficiencyof the jury in Sinhala no such miscarriage of justice could have occurredin this case even if Sinhala only had been used throughout the proceedings.The complaint therefore that the addresses were not interpreted intoEnglish ceases to have any justification. The interpretation into Englishof whatever part of the proceedings, which could have been conducted in
G. P. A. SILVA, S.P.J.—Pre.matiUe.kQ u. The Republic of Sri Lanka 517
Sinhala only was a superfluous procedure which resulted in certainadverse comments which would not have been otherwise available to theappellant.
In order to condense this judgment as far ns possible I have refrainedfrom referring to all the other judgments which counsel submitted for ourconsideration in the course of their argument on this point.
I shall now very briefly state the facts of the case which would berelevant for a consideration of the submissions relating to misdirectionsin the charge. The prosecution case was apparently presented as. onedepending on the direct evidence of the witness Hewalankarage Sirisena,supported by Premawathie and Kusumawathie (thewidow of the deceased)in regard to the movements of the accused and his association with thedeceased on the night on which the deceased was alleged to have met hisdeath. For a consideration of the main principle involved in this case1 should however w|sh to confine myself first to the examination of thecircumstantial evidence and not to take into account the evidence ofSirisena and Premawathie for that purpose.
Kusumawathie, the widow of the deceased, a woman of 25 years of age,stated that the accused’s father was the owner of an estate of about60 acres on which the deceased used to work as a labourer. There issome doubt as to the frequency of the employment but the impressionone forms on the whole of the evidence is that he had casual employmenton this estate in cinnamon peeling and other work and that he ceased towork as it was difficult to recover the wages. She had known the accusedwhom she called Sarath Mahattaya for about 3 or 4 years and for about6 months prior to this incident he had been “ associating ” with herin the absence of her husband. We do not know what word was used bycounsel and the witness in Sinhala to indicate what this association was.However, when one considers her evidence that he used to associatewith her ; that he spent 10-15 minutes or half an hour on each occasion ;that he came in the absence of her husband and that, even on the fatefulnight when he returned alone after taking her husband away, he did notassociate with her (adding the voluntary answer “ my children wereawake ” to the question whether the accused made a request), thereis no room to doubt tliat the association meant sexual intimacy. On thenight of the 13th April, the Sinhalese New Year Day, the accused, whowas after b'quor, came to her house at about 9 or 10 p.m. and left with thedeceased who was bare-bodied except for a chintz cloth sarong whichhe wore similar to the one found on the skeleton that was discoveredby the Police 6 days later in thick jungle within a quarter mile from thehouse of the deceased, the other house closest to the place being thatof the accused. The deceased wore this sarongs—or one similar to thisin diAign though newer—from the 11th April when he got a presentof it from his mother for the Sinhala New Year. The accused, wholeft, with the deceased, came back to her house at about 2 a.m.—it must be
518
O. P. A. SILVA, S.P. J.—Premalilleke v. The Republic oj Sri Lanka
remembered that she was not giving the time of the clock—without thedeceased and, to a question from her, replied that he had given drinksto the deceased and that the latter was sleeping in a vacant house. Theaccused came again at about 7 a.m. on the 14th and, when she informedhim that her husband had not returned, his reply was that the deceasedmay not come home and may have gone to his village because she abusedhim when he came after liquor and asked her not to look for him. Sheadded that the husband never took liquor. If that was true it is clearthat the acoused’s statement was an absolute fabrication. Among theother things that the accused told her on the 14th morning was that sheshould not tell anyone that he took her husband away. On the 14thitself she went to her mother at Penatiya to inquire if the deceased camethere and not finding him there decided to look for him at his parent’shouse at Maliduwa. At the bus halt or near it the accused met herand asked her not to look for the deceased as he will come home andto tell the Police if she was questioned that the deceased left home at4 a.m. On the 15th she went to the road with her child to take busto go to Maliduwa to look for the deceased. As nine buses passed herway, without accommodation perhaps, she came back home and wentwith her children to the mother-in-law’s house at Maliduwa the nextday and with the mother-in-law and Jayasena, a brother of the deceased,she came to the Weligama Police Station on that day and made a state-ment in which she admittedly suppressed the fact of accused havingtaken the deceased away at 9 or 10 p.m. on the 13th, her excuse beingthat she complied with the accused’s request. The other items of support-ing evidence came from Jayasena, the deceased’s brother, who confirmedKusumawathie when he said that he had seen the accused at the deceased’shouse earlier. He also stated that he returned to Akuressa with hismother on the 17th after going to the Weligama Police with his sister-in-law and, the accused who went past them in a car at Akuressa, stoppedthe car and came up and asked his mother “ what did Kusumawathietell you ”. There was also an important item of evidence which appearsto have transpired incidentally when Police Sergeant Ahamath gavoevidence, namely, that when he went on the 14th April to inquire intoa case of hurt of Ananda and Sunil Prematileka, two brothers of theaccused, as he went past the house of the deceased, he saw the accusedrunning away or walking fast from the deceased’s house into the jungle.The Sergeant was not looking for the accused nor had he occasion toquestion him regarding the injuries on his brother.
Even if these items of circumstantial evidence alone coupled with themedical evidence that the skeleton showed 6 or 7 necessarily fatal injuriesformed the only basis of the case for the prosecution, if a jury was preparedto accept Kusumawathie’8 evidence, despite her original false representa-tion to the Police which could have been well understood having regard to
G. P. A. SILVA, S.P.J.—Premalilleke t>. The Republic oj Sri Lanka
619
her relations with the accused, I venture to think that a reasonablejury properly directed could have convicted the accused. The evidencejustifying a conviction could be summarised as follows :—
identity of the body from the fact that the skeleton was found
within £ mile from the house of the deceased, in a highly decom-posed condition, covered with a sarong of the same patternthat the deceased wore (as confirmed by the GovernmentAnalyst) and that the skeleton did not have anything on theupper part of the body, the deceased having left home on the13th night wearing only a sarong,
the accused being the last person who was seen with the deceased
and the fact that the accused took the deceased away on thenight of the 13th when death could have occurred,
the sexual intimacy of the accused with the deceased’s wife and
the inherent motive of the accused who would have wishedto get the deceased out of his way so as to have Kusumawathiefor himself without any impediment.
The most incriminating items of evidence of his conduct in :
(а)telling Kusumawathie one falsehood at 2 a.m. of the ,14th
regarding the deceased,
(б)telling Kusumawathie,a second falsehood about the deceased
on the morning of the 14th,
asking Kusumawathie not to disclose that he took the
deceased away,
telling her on the 15th that the deceased will come back and
not to look for him,
inquiring from the deceased’s mother what Kusumawathie
told her,
(/) running away to the jungle from the deceased’s houseon the 16th when, if he was innocent, he should havebeen waiting for an opportunity to meet the Policoto assist them in regard to the cases of his brotherswho were seriously injured on the 14th.
Reminding myself of the famous dictum of Lord Ellenborough in thecase of Rex v. Lord Cockraine and others I would even say that, whenthe telling evidence of this mass of eloquent circumstances remainedunexplained by the accused, no reasonable jury could have returnedany verdict other than that of, guilt.
This however was not the principal case that the prosecution had.It was a case of direct evidence of Sirisena, who was presented admittedlyas a belated witness who came forward to testify only after the accused
x Gurney's Reports 479.
320
G. P. A. SILVA. S.P.J.—Pretnatillehr. v. The Republic of Sri Lanka
was arrested on the 19th April, together with the evidence of otherswho supported the movements of both Sirisena and the accused. Theevidence which I have just summarised was only sought in aid to buttressthe case of direct evidence.
Counsel for the appellant persistently criticised the misdirections ofthe trial Judge in calling a skeleton a body ; in not referring tothe discrepancy between the doctor’s evidence and that of Kusumawathiein regard to the age of the person whose skeleton was found, namelythat the doctor’s limit was that he was between 25 to 30 years andKusumawathie’s evidence that he was 24 ; in not referring to the differencein colour of the sarong even though the pattern was similar ; in thecomplete absence of qualifications of the doctor to speak about the age ofmaggots which was the main factor from which he fixed the time ofthe death and such other mo.ttcrs which are questions essentially forthe jury and every detail of which no trial Judge cp>:l reasonably beexpected to go into. We feel certain t hat even if the trial Judge hasomitted a detailed examination of these matters in his charge counselwould undoubtedly have referred to them and there w'as sufficient,evidence on these matters in which a reasonable jury could be satisfiedthat the body—or, to avoid inaccuracy, the skeleton—was that of thedeceased Dints alias Gunadasa.
Sirisena’s evidence, coupled with the support it received fromPremawathie regarding the meeting of Sirisena and the accused atabout 8.30 or 9 p.m. on the 13th, was that accused, who was the worsefor liquor that night, called him to go with him, went some distance,asked him to stop and, having left him, came back to the place with thedeceased. From that spot which was along a.footpath the three of themwalked further, accused leading and the deceased behind him andSirisena last. While proceeding the accused asked Gunadasa whetherhe could carry two bunches of plantains which the accused had cut tothe accused’s smoke room and the deceased consented. They walkedsome further distance and the accused asked him to stop and proceededwith the deceased, for a short distance but within his sight. Theytalked something in whispers and suddenly the accused started attackingthe deceased on his chest with a kris knife that he carried in his hand.The deceased shouted “ Budu Mahattayo don’t kill me, I have done noharm to you ”. Then the accused struck the deceased with his handand the deceased fell and the accused went on stabbing him on theneck. He then drew a cross with the knife on the deceased’s chestand said “ go and live with Kusumawathie ” and the deceased wasdead. The accused thereafter went to a well and washed the blade ofhis knife, then kept the knife on Sirisena’s chest and said “ If you whisperanything about the incident I will come to your house and shoot you ”.Sirisena swore, as required by the accused, that he would not disclosethis to anybody and through fear he disclosed the fact only after theaccused was taken into custody.
0. F. A. SILVA, 8.P, J,~=-Pr«mailll«ka v. The Republic of Sri Lanka
SSI
It was submitted that there was a serious non-dlrootion in regard tothe evidence of Sirlsona which amounted to a misdirection which vitiatedthe verdict. Tho submission was based on tho premise that Sirisenawas cither an aeoomplioc or was in the position of an accomplice or thathe was in oustody as a suspect when lie made his statement to the Policeand that he would thoroforo havo had tho same reasons as an accompliceto implicate someone else and extricate himself and consequently thathis evidence should not bo aotod upon without oorroboration. Couplodwith this was a submission that he was admittedly a belated witnessand that he had also a motive to fulsoly implicate the accused havingregard to tho evidenoo elicited in cross-examination. In regard to thelatter submission wo And some directions in the charge and a cleardirection to tho jury to acquit tho accused if they could not accept hisevidence. We find tlieso directions adequate for the purpose.
There are clearly no directions in. tho ohargo on tho basis of Sirisenabeing an accomplice. It is thoroforo necessary for us to examine whetherSirisena was oither an acoomplioo or was at loast in the position of anaccomplice. Wc have examined tins question very closely and we feelunable to find in Sirisena any of tho attributes of a particcps criminia or aguilty assooiato in the orime that we would expect to find before treatinghim as an accomplice. The loarnod trial Judge too would, we feel,have taken the same view and that may be tho reason why he pointedout to tho jury tho other infirmities of Sirisena and refrained fromaddressing such a direction. Wo cannot therefore say that there was amisdirection in this regard. While it is oorreot that the question whethera witness is an accomplice may often turn out to be a question of faotfor a jury tliore must transpire in tho case certain facts on which a juryoan bo called upon to consider that question. If suoh facts are absent,a trial Judge has no jurisdiction to direot a jury to consider the question,muoh less to give directions on the necessity for corroboration of thetestimony of an accomplice.
Even if he should have boen so treated, it is nccossary to. consider thefurther question whether there iB in fact oorroboration of his story. Ifthere was, the question would arise whether a reasonable jury couldhave returned any other verdiot than what they did if the non-direotioncomplained of had in fact, been given. It seems to me that there is at(east one important item of oorroboration of Sirisena's evidence. For,according to tho medical evidence, the skeleton whioh was regarded asthat of the deceased was that of a person who had died of several stabinjuries in the region of the neck. The evidence of Sirisena being thatthe accused inflicted one injury on the chest and after the deoeased fellwent on stabbing him on the neck would furnish oorroboration of hisstory on this important matter.
The last submission made to us was that there was misdirection onthe subject of intoxication. Counsel’s argument was that even thoughthe plea of drunkenness as reducing the offence was not put forward bythe defence, the learned trial Judge rightly addressed the jury on thisaspect as there was a considerable volume of evidence that the accused
Volume LXXV
622 G. P. A. SILVA, S.P.J.—Prematilleke v. The Republic oj Sri Lanka
had consumed some liquor at the time he committed the offence. Havingproceeded to address them, his contention was that the trial Judgeconfused the jury by directing them on the question of drunkenness in aWay which would have been appropriate in respect of a plea of insanity.He relied for this submission largely on the interpretation into Englishof the Sinhala charge which, as I adverted to earlier, was also heard bythe Jury. So far as the Sinhala charge is concerned, we find that thetrial Judge has dealt with this matter in some detail and directed thejury on the difference between intention and knowledge in this regard.Thereafter, having also explained to them about the lower burden thatlay on the defence in establishing a circumstance that reduced the offencefrom murder to culpable homicide, he directed them that where anaccused person at the time of the commission of this offence was so drunkas not to understand whether he was stabbing an animal or a log ofwood, the law imputes to such person not the intention but the knowledgeof an ordinary man. He added that, if they took the view on the factsthat the accused was drunk to that degree at the time of the offence,he was entitled to have the offence with which he was charged reduced toculpable homicide. Having regard to all the directions given to thejury on this aspect, even though limitations of his knowledge of Sinhalawould not have enabled him to place the matter before the jury as clearlyas he might have done had he summed up in English, we are unable tosay that the directions were inadequate. Here again it is useful to lookat the facts bearing on the question whether the accused had » murderousintention or was incapable of forming such intention.
The following items of evidence are relevant:—
Accused asked Sirisena, the witness, to stop at a certain place and
from there proceeded alone in the night and brought thedeceased.
Thereafter all three went further until they came to a lonely spot
at which too he asked Sirisena to stop and went ahead withthe deceased before stabbing him.
He carried a knife in his hand all the time.
He pretended to the deceased that he had cut two bunches of
plantains and that the deceased was required to carry themto the smoke house.
After stabbing the deceased several times fatally, he put a cross
on his chest with the knife and said: “ Go and live withKusumawathie ”.
He threatened Sirisena not to divulge the incident.
He obtained a promise from Sirisena on oath.
He went back alone through the jungle foot path to Kusumawathie.
He uttered a falsehood of his own creation to explain the absence
of the deceased to Kusumawathie.
A clear motive was present on independent evidence and wasconfirmed by the most eloquent words of the accused after thekilling—" Go and live with Kusumawathie
G. P. A. SILVA, S.V.J.—Prematilleke u. The Republic of Sri Lanka~i P 523
If the accused was sober enough to remember the rivalry forKusumawathie in these most telling words, if he was sober enough towalk from Premawathie's house to a lonely spot along a jungle foot path,if he was sober enough to ask Sirisena to stop at a point and thereafterto walk by himself in the dark and inveigle the deceased to the fatefulspot on a false pretext, if he was sober enough both to threaten and toobtain a promise from the only would-be witness against him andthereafter to go back to the object of his inordinate lust and to invent anexplanation for the deceased’s absence and if the jury believed theevidence on which these facts were based, it is inconceivable how theycould reasonably have come to any conclusion other than that the accused,though under the influence of liquor, was in full possession of his sensesso as to be capable of forming a murderous intention when he fatallyattacked the deceased. These facts unmistakably show that, even ifthere was a justifiable complaint in regard to a misdirection on thistopic, no reasonable jury properly directed could have returned anyother verdict if the prosecution evidence was accepted.
Counsel also complained that there must have been serious confusionin the minds of the jury as a result of two charges, one in Sinhala by theTrial Judge and the other in English through the Interpreter. In thisconnection he went into great detail about the discrepancies existingbetween the two. This difficulty must have existed at all times when anaccused was tried by a Sinhalese or Tamil jury in the past when theTrial Judge always summed up in English and it is also likely to occurin the future in many cases in which Trial Judges will not feel as confidentin their own proficiency in Sinhala as the learned Trial Judge in thiscase has been. In such cases this Court will not even have before it theversion of the charge that reached the jury through the Interpreter.In this case however, where the charge has been in Sinhala, and the jurylistened to that charge, discrepancies in the English version will bematerial only if they could have created confusion in the minds of thejury—being primarily an English-speaking jury. We must agree ofcourse that it would have been more appropriate and desirable in thiscase if the interpretation into English was avoided as it did not benefiteither the prosecution or the defence and has served no other purposethan to invite criticism. We have given our careful consideration tothe “ discrepancies ” referred to by Mr. Chitty but we are not satisfiedthat any such confusion could have been caused as alleged.
This case has brought to the forefront a consideration of the extentand nature of the powers and limitations of this Court in view of theadmitted irregularities of procedure which I have referred to earlier aswell as some of the criticisms of the charge. There are two importantquestions that call for an answer, the first, as to how this Court shouldapproach certain errors- of law which, while they savour of a technicalflavour and are lacking in real substance, are nevertheless contraventionsof certain provisions of law applicable to the conduct of trial beforea Judge and jury in the Supreme Court, as happened in this case ; andthe second, as to how this Court should treat any other matter of law
824
0. P. A. SILVA, S.P.J.—Prematillcke v. The Republic of Sri Lanka
whioh may be justifiably and successfully raisod. The learned DeputySolicitor-General has in fact invited us to consider this aspeot not merelyfrom the point of view of this case but in general in view of the rooenttrend to widen the scope of tho powers of this Court contrary to theStatute.
It is vital to remember primarily that this Court is a oreation of aStatute and, in exercising its powers it must at all times restrict itcslfto tho powers conferred by tho Statute. To travel outside it would botantamount to a failure to appreciate tho limitations imposod by thoStatute which created this Court. The powers of this Court—and, bynecessary implication, its limitations—are laid down with considerableprecision in Section 5 of the Court of Criminal Appeal Ordinance No. 23of 1938. This Court can allow an appeal only on three grounds :—
If it thinks that the verdiot is unreasonable or cannot bo supported
having regard to the evidence,
If it thinks that it should be set aside on the ground of a wrong
decision on any question of law, and
If it thinks that there has been a miscarriage of justice on any
ground.
This power to allow an appeal is however subject to the very importantproviso that even if the Court is of opinion that the point raised in appealmight be decided in favour of the appellant, tho Court may dismiss theappeal if it considers that no substantial miscarriage of justice hasactually occurred. I venture to think that this proviso applies onlyto the 2nd and 3rd of the above grounds for the reason that no verdictshould remain if the evidence does not support it.
It is with regard to the application of this proviso that the learnedDeputy Solicitor General has been at pains to submit that it has beenattached to this Section so that it may be effectively used. There isforce in this submission and our duties in this Court are never confinedto the mere acceptance of a submission that there has been in the courseof the trial a wrong decision of the trial Judge on any question of law orthat something has transpired which might have resulted in a miscarriageof justice. The proviso compels us to pause at that stage and to oonsiderwhether tho wrong decision of the trial Judge on the question of law orwhatever else may have transpired has actually caused a substantialmiscarriage of justice and empowers us to dismiss the appeal in the absenceof such miscarriage of justice. The learned Deputy Solicitor-Generalhas, while conceding that verdicts have been set aside where a miscarriageof justice has resulted in such circumstances, drawn our attention to aseries of cases such as those in which there have been serious activemisdirections in the charge or non-directions which amounted tomisdirections and reception of irrelevant evidence of bad characterof the accused in which the Court of Criminal Appeal in England refusedto interfere with the verdicts returned by the jury on the ground thatultimately no substantial miscarriage of justice could have occurred. Itis not necessary for me in this judgment to make a detailed examination
O. P. A. SILVA, 8.P. J.—Premalilleks v. The Republic of Sri Lanka 626
of all the authorities cited. Suffice it to say that the Court of CriminalAppeal in England as well as our enaotment which gave birth to thisCourt took into account the fallibility of trial Judges, the possibility ofinadvertent or erroneous misreoeption of evidence that may prejudicean accused and the oocurrcnoe of various other conceivable errors inthe course of a case due to oversight or wrong judgment. Implioit inthis proviso is an appreciation of such errors and the requirement forthis Court, in the event of the occurrence of suoh errors, not to set aBidea verdlot of the jury unless this Court considered the errors to haveaotually resulted in a substantial misoarriage of justioe. It is neoessarythat this Court should give full weight to every word of this'proviso andto apply it when considerations exist whioh make its applicationappropriate. Such application must be active and robust and notpassive and apologetio. Else this Court will cease to serve the purposefor whioh it was intended and beoome a manufactory of abstract decisionsbased on theoretical legal objections. It will fall into the unpardonableerror of pursuing the shadow and failing to reach the Bubstance. Thisis a situation whioh we must at all oosts avoid, having before us as we dothe guidance of wise pronouncements of eminent Judges both here andabroad. In this connection I can do no better than to recall the followingobservations expressed with such inimitably metioulous precision bythe famous Viscount Simon L.C. in SUrlani v. Director of PublicProsecutions1 (1044 A.C. 315 at 320) the principle underlying which hasnever been departed from up to thiB date by the Courts in England orby this Court:—
" Apart altogether from the impeached questions (which the CommonSerjeant in his summing-up advised the jury entirely to disregard),there was an overwhelming case proved against the appellant. Whenthe transcript is examined it is in evidence that no reasonable jury,after a proper summing-up, could have failed to convict the appellanton the rest of the evidenoe to whioh no objection oould be taken.There was, therefore, no miscarriage of justioe, and this is the propertest to determine whether the proviso to S. 4, sub-s. 1, of the CriminalAppeal Act, 1007, should, be applied. The passage in Woolmingtonv. Director of Public Prosecutions 1035 A. C. 462, 482, 483 whereViscount Sankey L. 0. observed that in that oase, if the jury hadbeen properly directed it could not be affirmed that they would have“ inevitably ” come to the same conclusion should be understood08 applying this test. A perverse jury might conceivably announce. a verdict of acquittal in the teeth of all the evidence, but the provisionthat the Court of Criminal Appeal may dismiss the appeal if theyconsider that no substantial miscarriage of justice has actually oocurredin convicting the aooused assumes a situation where a reasonablejury after being properly direoted, would, on the ovidence properlyadmissible, without doubt oonviot. That assumption, as the Court ofCriminal Appeal intimated, may be safely made in the present oase.The Court of Criminal Appeal has recently in R. v. Roddy 1044
* (IMi) A. O. SIS at 620.
626 G. P. A. SILVA, S.P.J.—Premaiilleke v. The Republic oj Sri Lanka
K. B. 422 correctly interpreted S. 4, eub-s. 1 of the Criminal Appeal
Act and the observation above quoted from Woolmington’s case in
exactly this sense. ”
With these observations in mind when one examines the instant caseone feels strongly that the circumstances present make it eminentlyappropriate for the active application of the proviso. There have beenadmittedly some steps in procedure at the commencement of the trialwhich are not warranted by the Code. There has been a Sinhala chargeto the jury coupled with an English interpretation which contains somesubstantial discrepancies in detail. There have perhaps been some direc-tions which could have been improved on or omitted with advantage.But the crucial question remains whether, having regard to the evidenceand the substantially correct charge, there has been an actual occurrenceof a substantial miscarriage of justice when the jury returned a verdict ofguilty or whether the procedure adopted at the trial and not specificallyauthorised by the Code consequent on the change of election by theaccused has resulted in any denial to the appellant of the protectiongiven by essential steps of criminal procedure as would amount to asubstantial miscarriage of justice. For the many reasons which I haveset out earlier, the answer to both these questions has perforce to be inthe negative and we can see no good ground to refrain from applyingthe proviso in this case.
The appeal is accordingly dismissed and the application is refused.
Before concluding this judgment I consider it apposite to say a word ortwo on the principle underlying the restricted scope of this Court inappeal in contrast to the much greater latitude allowed to the SupremeCourt in an appeal from an inferior Court. The principle is founded1on the paramount requirement that, in grave crimes of such a natureas are tried before the Supreme Court, the decision shall be by the juryand the jury alone. This Court cannot at any time substitute itselffor a jury. It can only act within its own limitations imposed by theStatute that created it subject to the overriding consideration that theLegislature, and therefore the people whose representatives form theLegislature—which term will include both the accused and the partiesaggrieved—have expressed their unquestionable desire to have trialsin respect of certain offences held and decided by a jury of seven fellowmen. Their decisions are therefore entitled to prevail on questions of fact,even if the three Judges of this Court think otherwise and this Courtwill be guilty of a serious usurpation of the fundamental right of thepeople for jury trials whenever it inflicts on them their own judgmenton facts in the teeth of the provisions of the Court of Criminal AppealOrdinance which preclude such usurpation. This Court can neverconstitute itself a jury and substitute its own verdict where all therelevant evidence has been presented to the jury followed by adequate andproper directions by the trial Judge. This Court will bo guilty of beingguided by irrelevant considerations if and when it is influenced by materialwhich has not been before the jury in arriving at their verdict. It will be
SAMERAWICKRAME, J.—The Attorney-General v. Suntharalingam627
for instance an improper exercise of the functions of this Court to b°influenced in its judgment in allowing an appeal or substituting a verdicteven by a detailed perusal of the Police Information Book or tho non-summary proceedings which the jury had no opportunity to considerat all, except in a rare case where there has been a substantial miscarriagoof justice owing to .some vital material escaping all concerned during thotrial which, had it been before the jury, would, in all probability, havemade a difference to the verdict. To be guided by such records as ageneral practice, however, would be for this Court to decide the casenot only on the evidence that was presented before the jury but on otherconsiderations as well. Such action by this Court would constituto analtogether unwarranted inroad into the functions of the jury which wouldamount to a complete negation of jury trial which, so long as the presentstate of criminal law endures, must be considered to be the clear right ofboth the accuser and the accused as expressed through the Legislature.
Appeal dismissed.