H. N. O. FERNANDO, C.J.—Dharmapala v. The Queen
[Court of Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President), Sirlmane, J.,and Samerawickrame, J.M.K. R. DHARMAPALA and another, Appellants, and THE QUEEN,
C. C. A. Application-Nos. 130-131 of 1968
S. C. 85/68—M. C. Teldeniya, 5477
Penal Code—Section 31—Common intention—Charge based thereon against twopersons—Whether'one of them can be found guilty of offence of abetment.
Where A and R^ire charged with an offence on tho basis of common intention(section 32 of the Penal Code) and there is no charge of abetment, the verdictof the jury that B is guilty of the offenco of abetment is not valid in the absenceof any explanation,-in the summing-up, of the meuning in law of abetment.
Appeals against two convictions at a trial before the Supreme Court.
R. S. R. Coomaratwamy, with Ananda Ouneratne, C. Chakradaran,M. S. Asiz and S. C. B. Walgampaya, for the 2nd accused-appellant.
S. Sinnetamby (assigned), for the 1st and 2nd accused-appellants.
V. S. A. Pullenayegum, Senior Crown Counsel, with Priyantha Perera,Crown Counsel, for the Crown.
January 15, 1969. H. N. G. Fernando, C.J.—
The two accused in this case were charged with the murder of oneNaide on the basis of section 32 of the Penal Code. The jury retired at10.20 a.m. and returned at 10.35 a.m. Thereafter the following is therecord of the proceedings :—
“ Clerk of Assize :By your divided verdict of 6 to 1, do you find this
1st accused Metiwala Kumbure RajapaksegederaDharmapala, guilty of the offence of murder ?
Foreman:Yes. In regard to the 2nd accused also we are
divided 6 to 1, and we find him guilty of aidingand abetting.
Court to foremanof the jury:
You don’t find that there was a common intentionwith the 1st accused to commit murder ?
H. N. G. FERNANDO, C.J.—Dharmapala v. The Queen159
There was no charge of abetment and, naturally, no explanation ^n thesumming-up of the learned trial judge of the meaning in law of the offenceof abetment. The above record shows that, firstly of his own accord, and,secondly even in answer to a different question, the foreman referred towhat he at one stage called aiding and abetting, and at the second stagecalled defending or helping his brother. It is only after these two answersthat, when the trial judge again referred to the question of commonintention, the foreman said “ we find both accused guilty of murder
It is apparent from this record that what the jury decided inthe jury-room by a majority of 6 to 1 was to inform the court that theyfound the 2nd accused guilty of aiding and abetting, and, that their reasonfor this decision was that the 2nd accused went to defend and help hisbrother. In the absence of any explanation in the summing-up of themeaning in law of abetment, wre think it only reasonable to assume thatthe jury thought that affording any kind of assistance to the 1st accusedwould constitute ,the criminal offence of abetment. Such a thought, ofcourse, would be perfectly wrong.(
Having regard to the assumption to which I have referred and to thefact that the jury had retired only for 15 minutes or less, it is impossible. to say with any measure of certainty that the jury did in fact( deliberateas they were bound by law to do on the question whether the 2nd accusedwas actuated by a common intention with his brother to cause the deathof the deceased. At a jury trial it is a right of.the accusedi that the jurymustdeliberate upon all the facts and decide whether on the facts asfound the accused is guilty in law of any offence. In this case the'obviousfailure of the jury to deliberate upon the one question which could bringhome guilt to the 2nd accused constitutes, in our opinion, a miscarriageof justice. On this ground, we set aside the verdict and sentence againstthe 2nd accused. We see no reason to interfere with the verdict andsentence against the 1st accused and they are affirmed.
Appeal of 2nd accused allowed.
Appeal of 1st accused dismissed.
My Lord, he went to defend his brother; he hasbeen helping.
There is no charge of aiding and abetting. Thecharge is one of murder against both accused.Is it your position that the 2nd accused did notshare a common intention with the 1st accused tocommit murder.
Yes, My Lord,murder. ”
We find both accused guilty of
M. K. R. DHARMAPALA and another, Appellants, and THE QUEEN, Respondent