Lurdu Nelson Fernando and Others v. The Attorney-General
LURDU NELSON FERNANDO AND OTHERS
SUPREME COURTFERNANDO, J.,
AMERASINGHE, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 59/95C.A. NOS. 90 – 93/92
C. COLOMBO NO. 3394/88MARCH 14TH, 1996
Criminal Law – Verdict of murder – Common intention – Defects in the summing•up – Power of court to dismiss appeal notwithstanding defects – S. 334 (1) ofthe Code of Criminal Procedure Act.
The appellants were convicted of the offences of conspiracy and murder on thebasis of common intention. It was urged on behalf of the appellants that the HighCourt Judge had failed to give adequate directions to the jury regarding commonintention and conspiracy.
Even though the points raised on behalf of the appellants might be decided intheir favour, yet no miscarriage of justice has actually occurred; hence the appealshould be dismissed.
APPEAL from the judgment of the Court of Appeal.
Ranjit Abeysuriya PC with Miss. Dilanthika Navaratne and Miss Priyadarshini Diasfor appellants.
C. R. de Silva, DSG with Kapila Waidyaratne for Attorney-General.
Cur. adv. vult
Sri Lanka Law Reports
(1998) 2 Sri LR.
March 21, 1996FERNANDO, J.
The three appellants, and two others, were charged on four countsin respect of the murder of A. S. M. Fernando: conspiracy, murderin furtherance of a common intention under section 32 of the PenalCode, membership of an unlawful assembly the common object ofwhich was to cause hurt to A. S. M. Fernando, and murder inprosecution of the common object of that unlawful assembly. Oneaccused died before the trial commenced, and the other four weretried and convicted on all four counts, and sentenced to death.
The Court of Appeal set aside the conviction of one accused onall four counts, and the convictions of the three appellants on the twocounts involving unlawful assembly. Special leave to appeal wasgranted on the question of the adequacy of the directions given tothe jury in regard to common intention and conspiracy.
Mr. Ranjit Abeysuriya, PC, pointed out certain deficiencies in thesumming-up: the jury were not cautioned that they should not concludethat there was a common murderous intention unless that was anecessary inference, and not merely a possible inference, and thatthe case of each accused should be considered separately; and thejury were not given any guidance as to how the legal principlesregarding common intention and conspiracy were applicable to thefacts of the case. The Court of Appeal had not dealt with these matters.Mr. C. R. de Silva, DSG, contended that, whatever the deficienciesin the summing-up, the evidence was overwhelming, and the provisoto section 334 (1) of the Code of Criminal Procedure Act wasapplicable; the order of the Court of Appeal should therefore be allowedto stand.
The evidence is that all five accused stole a Hi-ace van atKochchikade on the previous day. Thereafter, in broad daylight, on27.11.85 while the deceased was travelling, with two others, in a caralong Reclamation Road, Colombo, that van was driven into the car,bringing it to a stop. There were five persons in the van, but only
Lurdu Nelson Fernando and Others v. The Attorney-General(Fernando, J.)
the 1st and 2nd appellants were identified. The 1st appellant got downwith a pistol in his hand. The deceased was seated in the right rearseat, behind the driver; his son-in-law, the only eye-witness who gaveevidence, was seated in the front seat beside the driver. The 1stappellant first tried the left rear door, and finding it locked, then triedthe right rear door, with the same result. The 2nd appellant cameup to the son-in-law, and saying "salli, salli", tried (unsuccessfully) totake the money which was in his shirt pocket. An unidentified thirdperson also got down from the van, armed with a pistol. The othertwo remained in the van. The son-in-law heard a shot (which hadbeen fired through the right rear window) and immediately afterwardssaw the 1st appellant with his pistol aimed at the deceased; he alsosaw the third person behind the 1st appellant, with his gun pointingin the direction of the deceased. No attempt was made thereafter tosteal money or anything else, and all five left in the van, which wasabandoned some time later. The gun used for the killing was not found.
The 3rd appellant's fingerprints were found on the van, but thatwas only proof of his presence the previous day, and not at the timeof the killing. However, there was evidence that later the 3rd appellanthad asked another witness for a loan, saying that he was in financialdifficulties because he had not received payment in respect of a“contract" for the killing of the deceased; he had stated that “we killed"the deceased.
The three appellants did not give evidence, but made dock state-ments denying any involvement in the incident in which the deceasedwas killed. Thus if any of them were found to have been actuallypresent at the scene, there was no explanation for his presence ormotive.
Whether it was the 1st appellant or the unidentified person whofired the fatal shot, the only inference from the facts was that theyshared a murderous intention. Although the eye-witness did not identifythe 3rd appellant as one of those present at the scene, his confessionestablishes his murderous intention, from the time the “contract" wasgiven to him, and the statement “we killed" establishes his personalparticipation in the killing.
Sri Lanka Law Reports
(1998) 2 Sri LR.
The evidence thus appears overwhelming, as against the 1st and3rd appellants, that there was prearrangement and a commonmurderous intention. However, Mr. Abeysuriya submitted that acommon intention to murder was not the "necessary" or inescapableinference from this evidence. While submitting that the defence wasunder no obligation even to suggest what other inference was possible,he relied heavily on the evidence that the 2nd appellant had demandedmoney from the deceased's son-in-law. This, he said, indicated thatthe 2nd appellant's intention was only to commit robbery, and alsocreated a reasonable doubt even as to whether the other twoappellants intended murder or only armed robbery. In the case of the1st and 3rd appellants that is mere speculation, and nothing more.The former did nothing indicative of a theftuous intention, and the otherhad accepted a contract to kill. While the 2nd appellant's demandfor money makes his case different, yet taken in the context of hiscontinuing participation, commencing with the robbery of the van, thecompelling inference is that he intended to rob as well as to kill, orintended to kill in order to rob. The fact that none of the personsinvolved made any attempt to steal after the murder, shows thatrobbery was, if at all, an incidental consideration.
Any reasonable jury, properly directed as to the law, wouldnecessarily have found, on this evidence, that the three appellantsshared a common intention to kill the deceased, and that that intentionwas the result of a conspiracy. I am therefore of the opinion that eventhough the points raised by Mr. Abeysuriya might be decided in favourof the appellants, yet no miscarriage of justice has actually occurred.I therefore dismiss the appeal.
AMERASINGHE, J. – I agree.
WIJETUNGA, J. – I agree.