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In the Privy Council.
On Appeal from the Supreme Court of Ceylon (CriminalJurisdiction).
Present: The Lord Chancellor, Lord Ashbourne, LordMacnaghten, Lord Robertson, Lord Atkinson,and Lord Collins.
LOKU NONA and two others v. THE KING.
P. C., Negombo, 8.151.
Special leave to appeal to the Privy . Council—Conviction far murder—
Mitigation of punishment pending the hearing of the appeal—
Application to the ■Government of Ceylon or the Supreme Court.
The Judicial Committee of the Privy Council accorded specialleave to appeal from a judgment of the Supreme Court, in itsCriminal Jurisdiction, upholding a conviction and sentences in atrial for murder.
TheirLordships wereofopinion thatany applicationfor mitiga-
tion of punishment, pending the appeal, or for the admission of theaccusedto bail, oughttobe addressedto the CeylonGovernment
or the Supreme Court.
HIS was a petition for special leave to appeal from a judgmentof the Supreme Court of Ceylon in its Criminal Jurisdiction
of December 11, 1907, upholding a conviction and sentences in atrial for murder heard before Mr. Justice Wood Renton in November.
(See 11 N. L. R. 4.)
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April 1, 1908, Sir Robert Finlay, K.C., Mr. F. H. M. Corbet,and Mr. E. W. Jayewardene (of the Ceylon Bar) appeared for thepetitioners.
The petition stated that the petitioners are Loku Nona, the wifeof Migel Mudalali; her sister, Punchi Nona, an unmarried woman,23 years of age; and Kaitan, a boy of 14, who was a servant inLoku Nona's house. They were charged with having, on or aboutJuly 31 last, at Talahena, in Ceylon, murdered a female servantcalled Carlina. After magisterial proceedings they were committedfor trial, and were tried at the Colombo Criminal Sessions beforeMr. Justice Wood Renton, with a jury of seven 'persons, four ofwhom were Europeans and three natives. The trial lasted fromNovember 11 to 22, and the jury, by a majority of six to one, foundthe prisoners guilty, but recommended them to mercy. They weresentenced to death. The prisoners’ counsel applied to the Judge,under the provisions of the Criminal Procedure Code, to reservecertain questions for the consideration of the Collective Court,which he agreed to do. The case reserved came up for argumentbefore Chief Justice Hutchinson and Justices Wendt and Middleton,who upheld the conviction. The sentences had since been com-muted to twenty years’ rigorous imprisonment. The case for theprosecution was that on the night of July 31, at about 10 o’clock,the first accused, Loku Nona, with a club handed to her by Peregrino(a servant), struck her servant Carlina, a gii’l of about 18 years ofage, on the head; that Carlina fell, crying “ amma ” (mother); thatPunchi Nona, the second accused, put her hand over Carlina’smouth to stop further cries; and that Loku Nona then told Jane,a servant girl about 14 years of age, to bring a knife. (Jane was theprincipal witness in the case. She was the only eye-witness.) Theprosecution went on to allege that Jane brought a knife from thekitchen and gave it to Loku Nona, who handed it to Punchi Nona,saying “ Cut her throat ”; that while Kaitan, the third accused,held his hand over Carlina’s mouth, Punchi Nona with the knifebrought by Jane, inflicted a cut upon Cariina’s throat; that Carlinathen lay still, apparently dead; and that .shortly afterwards, on theorders of the Mudalali (the husband of the first accused), Carlinawas carried away towards the shore, to be thrown into the sea.According to the medical evidence “ the cut on the throat was notfatal,” and “ the cause of death was concussion of the brain, dueto contusions caused by some blunt instrument like a club.” Fourdistinct contusions upon the head were found by the doctor whomade the post-mortem examination. Jane spoke of one blow only.There was no evidence that the blow alleged by Jane to have beeninflicted by the accused was the cause of death or by what agencythe other contusions were caused. The petitioners submitted that theconviction and sentences were wrong and ought to be set aside, andthe proceedings quashed owing to misdirections by the learned Judge.12-
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1908. The petitioners, therefore, asked for special leave to appeal from theApril 1. judgments, convictions, and sentences, and that, until the hearingand disposal of the appeal, the sentences should not be carried intoeffect.
Sir Robert Finlay, in addressing the Board in support of thepetitions, said the ease for the prosecution rested entirely on theevidence of a native servant girl called Jane, who was 14 years of age,and who alone deposed to having seen .the alleged assault and murderof her fellow-servant. She was known to have a dislike to hermistress and her sister, who were native Boman Catholic ladies,and who had punished her for her laziness and other faults, andalso a dislike to the lad Kaitan, who had struck her on one occasion.Jane’s evidence was open to the criticisms that she was, on her ownshowing, an accomplice; that her statements were unconfirmed, andin fact rebutted on material points, and that she had grossly contra-dicted herself. At first she had stated that on the night of thealleged murder about 1 a.m. she was awoke by hearing Carlina,who slept in the hall, cry out, and that she heard people movingabout, but that she did not herself move or go to see. A weeklater she professed to have been an eye-witness of. the attack onCarlina, and described how at IQ p m. she saw Loku Nona strikeCarlina on the head, how she herself brought a knife, how she saw'Carlina’s throat being cut, and how she heard Migel. Mudalali orderCarlina to be thrown into the sea. There was not a . vestige ofcorroboration of these contradictory statements. What was thealleged motive for this brutal murder, if murder it was? Janeasserted that she and Carlina had seen Punchi Nona, their mistress’s .unmarried sister, misconducting herself with her betrothed husband,with the result that she became pregnant, and was then removedto- Colombo for abortion to be procured. Upon this point Dr. Garvin,the Medical Officer at the Government General Hospital atColombo, and another medical witness of position gave emphatictestimony that the young woman, Punchi Nona, was virgo intacta.
The Lord Chancellor said there was very strong medical evidenceto falsify what had been alleged against Punchi Nona, and if thatwere so, the absence of motive and the mendacity of Jane wereimportant factors in the consideration of the matter.
Sir Robert Finlay submitted that the medical evidence utterlydestroyed the credit of the witness Jane, on whose testimony thewhole charge of murder rested. Others who were said to havebeen eye-witnesses of the crime, such as Peregrino, the male servant,were not called by the Crown, and the evidence of Jane was, in fact,all that was produced against the accused. Instead of directingthe jury as to the absence of corroboration, the Judge made thegeneral remark that, if juries were to throw up a case on acoountof contradiction and falsehoods, there would be an end to thecriminal law of the Island. On these, and other grounds Sir Bobert
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Finlay submitted that special leave to appeal to the Judicial Com-mittee from the sentences should be granted.
The Lord Chancellor said their Lordships would humbly adviseHis Majesty to accord special leave to appeal.
Sir Robert Finlay applied that, as the accused persons were nowundergoing rigorous imprisonment, the hearing of their appeal shouldbe expedited, and in the meantime that either the severity of thepunishment should be relaxed or even that bail should be allowedthem. Replying to Lord Ashbourne, he said the arguments againstthe conviction would virtually be the same as those to which theirLordships had just listened, biit the Crown, or the. Supreme Court,would possibly be represented when the appeal came on for decision.
The Lord Chancellor said their Lordships would be ready to hearthe appeal as soon as it could be presented to them. In regardto the application as to the mitigation of punishment pending theappeal, or to the admission of the accused to bail, it ought to beaddressed either to the Ceylon Government or to the Supreme Court.
Special leave to appeal was accordingly given.
LOKU NONA and two others v. THE KING