(1990] 1 Sri LR.
Sri Lanka Law Repons
v.THE REPUBLIC OF SRI LANKA
TAMBIAH, A. C. J„ H. A. G. DE SILVA. J„ G.' P S. DE SILVA, J„
BANDARANAYAKE, J. AND JAMEEL, J.
S.C. APPEAL No. 27/87—C.A. No. 42/85—H.C. BATTICALOA 186/80.
NOVEMBER, 28 AND 29. 1989.
DECEMBER, 1 AND 4, 1989.
Criminal Law—Murder—Non direction amounting to misdirection—Burden oi proof—Applicability of proviso to section 334 (1) of the Code of Criminal Procedure Act—Burdenof proof of denial by accused—Reasonable doubt—Dock statement.
In a trial on a charge of murder two eye-witnesses testified to seeing the accused-appellant fire one shot with a gun at the deceased at night. The accused in a statement fromthe dock denied he was anywhere in the vicinity of the shooting. The trial judge failed todirect the jury that it was sufficient for the appellant to secure an acquittal if the statementfrom the dock raised a reasonable doubt in regard to the allegation of the prosecution thatit was the appellant who shot the deceased.
The enacting part of sub-section (1) of section 334 ' mandates ‘ the Court to allow theappeal where—
the verdict is unreasonable or cannot be supported having regards to theevidence; or
there is a wrong decision on any question ol law ; or
there is a miscarriage of justice on any ground.
The proviso clearly vests a discretion in the Court and recourse to it arises only where theappellant has made out at least one of the grounds postulated in the enacting part of thesub-section. There is no warrant for the view that the court is precluded from applying theproviso in any particular category of “ wrong decision" or misdirection on questions of lawas for instance, burden of proof.
There is no hard and fast rule that the proviso is inapplicable where there is a non directionamounting to a misdirection in regard to the burden of proof. What is important is that eachcase, falls to be decided on a consideration of (a) the nature and intent of the non-directionamounting to a misdirection on the burden of proof (6) all facts and circumstances of thecase, the quality of the evidence adduced and the weight to be attached to it.
The appellant had been identified by the widow and daughter of the deceased. Therewas bright moonlight at the time and the appellant was known to them Their story that the
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appellant shot the deceased from very dose range after which the gun was re-loaded iscorroborated by the burning, blackening, tattooing and singeing on the deceased’s bodyand the Police recovering a spent cartridge at the scene. Further the accused and Dominichis son-in-law had gone to the Police Station and the accused had handed over a gun whichwas found to be smelling of burnt gun powder. Dominic had a boundary dispute with abrother of the deceased. Dominic who was also an accused in the case had died prior tothe trial.
Despite the non direction in regard to the appellant's dock statement a reasonable juryproperly directed would inevitably and without doubt have returned the same verdict.
De Alwis v. The Queen 75 NLR 337, 339 distinguished.
Cases referred to:
De Alwis v. The Queen 75 NLR 337. 339.
Lafeer v. The Queen 74 NLR 246.
Dionis v. The King 52 NLR 547.
Don Henry v. The Queen 71 NLR 559.
King v. Fernando 48 NLR 249.
Karunaratne v. The Slate 77 NLR 527.
Punchi Banda v. The State 76 NLR 293.
Piyadasa v. The Queen 72 NLR 434..
Wyman v. The Queen 72 NLR 6.
Yahonis v. The Queen 67 NLR 8.
Martin Singho v. The Queen 69 CLW21.
Kandakutty v. The Queen 75 NLR 457.
Murtagh arid Kennedy 39 Cr. App. Rep. 72.
Weerasena v. The Queen 73 NLR 300.
Gunapala v. The State CA 102/87 C.A. Minutes of 27.8.89.
R. v. Landy, White and Key 72 Cr. App. Rep. 237.
Nicholas Webb Edwards 77 Cr. App. Rep. 5.
Bronlie David Oliva 46 Cr. App. Rep. 241.
Stinger 46 Cr. App. Rep. 244.
Sparrow 46 Cr. App. Rep. 288.
Stirland v. D.P.P. 1944 AC 315, 321, 1944 30 Cr. App. Rep. 40. 47.
Rex v. Wijedasa Perera 52 NLR 29. 37.
Queen v. Kularatne 71 NLR 529. 552.
. (24) King v. Dharmasena 51 NLR 481 (P.C.)
APPEAL from judgment of the Court of Appeal.
Ranjith Abeysuriuya. P.C. with L. Wickrematunga and Missly de Silva for accused-appellant.
Tilak Marapona, P.C. Additional Soliciter-General with C. R. de Silva. Senior StateCounsel and K. Indatissa .State Counsel lor Attorney-General.
Cur. adv. vult.
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January 30, 1990.
I agree with the judgment of G. P. S. de Silva, J.t and the order madedismissing the appeal.
The appellant made a dock statement and his defence, in its essence,was one of denial of the commission of the murder, and it is not deniedthat the learned trial Judge had failed to give a direction to the jury that itis sufficient for the accused to raise a reasonable doubt as to the truth ofthe prosecution case. The leaned trial Judge has failed to direct the Juryon the impact of the dock statement on the prosecution evidence. It issettled law that the Jury must be directed that if the dock statement raiseda reasonable doubt in their minds about the case for the prosecution, theaccused is entitled to an acquittal (See Queen v. Kularatne, (23)).
It is the submission of Mr. Abeysuriya, P.C., that this non-direction wason a “fundamental point” which went to the “heart or the core of the case"and that the Court of Appeal should not have applied the provisoto s. 334 (1) of the Code of Criminal Procedure Act and dismissed theappeal. He also submitted that in such a situation, the Court of Appealshould have ordered a re-trial in terms of the proviso to s. 334 (2) of theCode.
Mr. Abeysuriya, P. C., primarily relied on a passage in the judgment ofG. P. A. Silva, S.P.J., in De Alwis v. The Queen (1) :
“There has been no case where despite a clear misdirection on theburden of proof this Court has thought it fit to apply the proviso anddismiss the appeal and affirm the verdict of the Jury.”
As was correctly pointed out by Mr. Marapone, A. S. G., the attention ofthat Court was not drawn to Lafeer’s case (2) where despite a misdirectionand also a non-direction on the standard of proof, the proviso was appliedand the appeal was dismissed.
Mr. Abeysuriya, P. C., also relied on the judgments in the cases ofDionis v. The King (3) and of Don Henry v. The Queen (4). In the formercase, the Court did consider the proviso but determined that it was not “anappropriate case for the application of the proviso" though there was a
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misdirection on the burdenof proof. Nodoubt, the nature of the misdirectionwould have been relevant in this determination. In the latter case, theCourt observed that “it is quite unnecessary to say here whether everycase of misdirection in respect of the burden of proof precludes anapplication of the proviso." There is nothing in either of these cases tosuggest that the Court was laying down an absolute and hard and fast rulethat the proviso is not applicable where the misdirection relates to theburden of proof.
The corresponding provision in the English Law which was s. 4 (1) ofthe Court of Criminal Appeal Act of 1907 was in terms identical with s .334(1) of our Code. In the case of Bronlie David Oliva (18), the trial Judgefailed to tell the Jury that the burden was on the prosecution to prove theprisoner's guilt. The Court of Criminal Appeal quashed the conviction.Oliva was not followed in Stinger's case (19) where too the trial Judgeomitted to say that the burden was always on the prosecution and that theprisoner never had to prove his innocence. The appeal was dismissed bythe Court of Criminal Appeal as there was no substantial miscarriage ofjustice. In Sparrow’s case (20) the summing-up was defective withregard to the burden of proof. The Court of Criminal Appeal consideredboth the cases, Oliva and Slinger, and said that in an appropriate case,the proviso to s. 4 (1) of the 1907 Act can be applied. It dismissed theappeal as there was no substantial miscarriage of justice. In NicholasWebb Edwards (17) the trial Judge failed to direct the Jury on thestandard of proof which the Court of Appeal considered as a “seriousdefect in the summing-up.” The Court considered the cases of Oliva,Slinger and Sparrow and concluded that there is no absolute ruleexcluding the operation of the proviso to s. 2 (1) of the Criminal AppealAct of 1968. Though the grounds for allowing the appeal are not the sameas in s. 4 (1) of the 1907 Act, the proviso is identical except that the word"substantial” has been dropped. The Court proceeded to say, “Fromthose cases (Slinger & Sparroui) it appears that in such a case, as in anyother, the Court must consider the operation of the proviso in the light ofthe particular facts of the case. There are various formulations in thecases of the principle uderlying the proviso. We shall adopt the words ofViscount Simon, L. C., in Stirlandv. Director of Public Prosecutions (21)and ask ourselves whether on the evidence a reasonable jury, properlydirected on the standard of proof, would without doubt have convicted theappellant.” The Court then reviewed the evidence and came to the viewthat the evidence against the appellant was “overwhelming" and that
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despite the serious omission of the Judge, this was a case where beyondall doubt a reasonable jury, if properly directed, would on the evidencehave convicted the appellant, and dismissed the appeal.
Thus it would seem from a consideration of the English cases that inconsidering whether the proviso should be applied or not where there isa nondirection is regard to the burden of proof, no absolute and hard andfast rule can be laid down ; the Court must consider the operation of theproviso in the light of the particular facts of the case. I see no reason whythe test formulated in the English cases in deciding whether the provisoshould be followed or not, should not be followed in this country. In fact,the test formulated by Viscount Simon L. C., in Stirland’s case has beenadopted in the cases of Kina v. Dharmasena (24) and Rex v. WijedasaPerera (22).
The facts have been discussed by G. P. S. de Silva, J., and I agree withhis conclusion that the case against the appellant was a “formidable" and‘'everwhelming" one. It is significant that it is not the contention of theappellant that the verdict of the Jury was “unreasonable" or that it “cannotbe supported having regard to the evidence”. So, I ask myself thequestion : “Whether on the evidence, a reasonable jury, properly directedon the burcfenof proof, would without doubt have convicted the appellant ?",and my answer is “Yes”.
G. P. S. DE SILVA, J.
The appellant along with one Dominic was indicted on the charge ofhaving committed the murder of K. Kanapathipillai on 27th October, 1977.Dominic had died prior to the trial and the case proceeded only againstthe appellant. After trial, the jury found the appellant guilty of murder bya divided verdict of 6 to 1. The appellant preferred an appeal against hisconviction to the Court of Appeal. The Court of Appeal dismissed theappeal. The appellant obtained leave to appeal to this Court from theCourt of Appeal on the question whether the proviso to section 334(1) ofthe Code of Criminal Procedure Act, No. 15 of 1979 is applicable wherethere is a non direction amounting to a misdirection in regard to theburden of proof. When the appeal came up for hearing before a Bench ofthree judges of this Court, His Lordship the Chief Justice directed in termsof Article 132 (3) (i) of the Constitution that this appeal be heard beforea Bench of five Judges.
SC Mannar Mannan v. The Republic of Sri Lanka (Thambiah, A.C.J.)285
I shall deal with the facts moie fully later, but for the present it wouldbe sufficient to state that this was a case of shooting by night. Theprosecution relied on two eye-wtnesses who testified that they saw theappellant fire one shot with a gun at the deceased who immediately diedof the injuries. On the other hand, the appellant made a statement fromthe dock and took up the positionthat he did not shoot the deceased andthat he was not even in the immediate vicinity of the scene at the time ofthe shooting. Thus the essence of the appellant’s defence was one ofdenial and further, that at the timeof the shooting he was not at the scene.
In this state of the evidence, Mr. Abeysuriya for the appellant quiterightly submitted that it was sufficient for the appellant to have raised areasonable doubt as to the truth of the case for the prosecution, namelythat it was the appellant who shotand caused the death of the deceased;that there was no burden whatsoever on the appellant to prove his" denial "or to prove that he was elsewhere at the time of the shooting.Admittedly, the trial Judge failed to direct the jury that it was sufficient forthe appellant to secure an acquittal if the statement from the dock raiseda reasonable doubt in regard to the allegation of the prosecution that itwas the appellant who shot the deceased. This non direction, Mr.Abeysuriya argued, was on the burden of proof which is a matter, to useCounsel’s own words, “ that goes to the core of the case and the root ofthe ultimate decision of the jury ’’. Mr. Abeysuriya further contended thatonce it is shown that there is a non direction on so fundamental a matteras the burden of proof, it was not open to the Court of Appeal to have hadrecourse to the proviso to sub-section 1 of section 334 of the Code ofCriminal Procedure Act, No. 15 of 1979, and to have dismissed theappeal. In other words, Counsel maintained that where there is nondirection relating to the burden of proof in a charge to the jury, there is abar to the Court of Appeal applying the proviso to section 334(1) of the Act.It was urged that the only matter which remains for the Court to considerin such a situation is whether a re-trial should be ordered in terms of theproviso to sub-section (2) of section 334 of the Act.
Section 334 (1) reads as follows :—
“ 334(1). The Court of Appeal on any appeal against conviction ona verdict of a jury shall allow the appeal if it thinks that such verdictshould be set asideon the ground that it is unreasonable or cannot besupported having regard to the evidence, or that the judgment ol the
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court before which the appellant was convicted should be set aside onthe ground of a wrong decision of any question of any law or that onany ground there was a miscarriage of justice, and in any other caseshall dismiss the appeal:
Provided that the court may, notwthstanding that it is of opinion thatthe point raised in the appeal might be decided in favour of theappellant, dismiss the appeal if it considers that no substantialmiscarriage of justice has actually occurred
Section 334 (2) reads as follows
“ 334(2). Subject to the special provisions of this Code the Court ofAppeal shall, if it allows an appeal against conviction, quash theconviction and direct a judgment of acquittal to be entered :
Provided that the Court of Appeal may order a new trial if it is ofopinion that there was evidence oefore the jury upon which theaccused might reasonably have been convicted but for the irregularityupon which the appeal was allowed ”
As submitted by Mr. Marapone, Additional Soliciter-General, theenacting part of sub-section (1) of section 334" mandates ” the Court toallow the appeal where (a) the verdict is unreasonable or cannot besupported having regard to the evidence, or (b) there is a wrong decision ,on any question ot law, or ic) there is a miscarriage of justice on any ground. We are here concerned only with ground (£>) set out above. As |regards the proviso, it is relevant to note, first, that it clearly vests adiscretion in the Court and, secondly, that recourse to it arises only wherethe appellant has made out at least one of the grounds postulated in theenacting part of the sub-section. Moreover, it seems clear that on a plainreading of the sub-section there is no warrant forthe view that the Courtis precluded from applying the proviso in any particular category of“ wrong decision ” or misdirection on question of law as, for instance,burden of proof.
Mr. Abeysuriya, however, strenuously contended before us that thereis a “ cursus curiae " in Sri Lanka which shows that when there is amisdirection on the burden of proof the proviso to section 334(1) is neverapplied and that the Court of Appeal was in error in applying the “proviso
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" in the instant case, the principal authority upon which he relied wasDe Alwis v. The Queen, (1) and the passage in the judgment upon whichhe placed the utmost reliance reads as follows:—
“ There has been no case where despite a clear misdirection on theburden of proof this court has thought it fit to apply the proviso anddismiss the appeal and affirm the verdict of the jury and that is what itshould be for a misdirection on the burden of proof is so fundamentalin a criminal trial that it cannot be condoned for.the reason that the juryin addressing themselves to the task of returning a verdict in the casemay set about it with a complete misconception as to the burden ofproof
The statement that there has been no previous case where the provisohas been applied despite a clear misdirection on the burden of proof isincorrect, as pointed out by the Court of Appeal. Moreover, the judgmentitself cites no authority for such a broad proposition. Further, a closereading of the judgment suggests that the court was influenced by“concessions ” made by counsel for the Crown.
There was the important decision in Lafeer v. Queen (2) (not referred toin De Alwis v. The Queen, (supra) where the only matters which arose forconsideration were, firstly, the standard of proof required of the prosecutionand secondly, “ the standard applicable for the proof of facts which mightestablish that the accused had acted under grave and sudden provocation”. It was held that there was a misdirection in regard to the first matter anda nondirection in regard to the second matter. In the concluding paragraphof the judgment, H.N.G. Fernando, C.J. statedThere was thus bothmisdirection and non-direction on matters concerning the standardof proof. Nevertheless, we are of opinion having regard to the cogentand uncontradicted evidence that a jury properly directed could nothave reasonably returned a more favourable verdict. We therefore affirmthe conviction and sentence and dismiss the appeal." (The emphasis ismine) This, therefore, is a case where the Court of Criminal Appealapplied the proviso despite misdirection and nondirection in regard to thestandard of proof.
The next case heavily relied on by Mr. Abeysuriya was Dionis v. King,(3). That too was a case where there was a clear misdirection on theburden of proof by the trial Judge. Counsel appearing for the Crown
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invited the Court todismiss the appeal, acting under the proviso to section5(1) of the Court of Criminal Appeal Ordinance (which is in the same termsas the present proviso to section 334 (1)). Gunasekera, J. delivering thejudgment of the Court of Criminal Appeal stated : “ We have consideredthis submission but we are unable to agree with the view that this is anappropriate case for the application of the proviso notwithstandingthat there has been a misdirection on such a fundamental point as theburden of proof (The emphasis is mine) As rightly submitted by Mr.Marapone, this decision is not an authority for the proposition that wherethere is a misdirection on the burden of proof, the court is precluded fromapplying the “ proviso There is nothing in the judgment to suggest thatthe Court was laying down any such rule.
Another case cited by Mr. Abeysuriya in support of his contention isDon Henry v. Queen (4). Here too there was a misdirection on the burdenof proof and Crown Counsel invited the court to apply the proviso tosection 5 (1) of the Court of Criminal Appeal Ordinance. Pursuant to thisinvitation T. S. Fernando, J. expressed himself thus : "It is unusual toapply the proviso where the ground upheld is one of misdirection on the
burden of proofit is quite unnecessary to say here whether
every case of misdirection in respect of the burden of proof precludes anapplication of the proviso. It is sufficent to say that in our opinion we areunable to say that granting a misdirection, the prosecution has satisfiedus that no substantial miscarriage of justice has actually occurred." Theabove dicta, in my view, tends to negative the proposition contended forby Mr. Abeysuriya, rather than to establish it.
Mr. Abeysuriya also referred us to the following cases : King vs.Fernando (5) Karunaratne v. Stale (6) Punchi Banda v. State (7)Piyadasa v. The Queen (8) Wyman v. The Queen, (9) Yahonis Singhov. The Queen (10) Martin Singho v. The Queen (11) Kandakutty v. TheQueen(i2), Murtagh and Kennedy (13) and Weerasena v. Queen (14).In all these cases, however, the court had no occasion to address its mindto the question of the applicability of the “Proviso" and hence they are oflittle assistance in deciding the point in issue in the appeal before us. Thedecision in Gunapala v. TheState(15) has followed the case of De Alwisv. The Queen (supra). Moreover, Lafeerv. Queen (supra) has not beencited before the Court of Appeal.
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In the subsequent written submissions Mr. Abeysuriya has drawn ourattention to yet another case which he submits supports him, vis. R. v.Landy, White and Key, (16). However, I find that there was no clear rulingin this case that the proviso is inapplicable where there has been a“fundamental” misdirection. Dealing with the submission of Mr. Hazan (onbehalf of Landy) “that where there has been a fundamental misdirection
the proviso should never be applied", Lawton L. J. stated
: “we do not intend in this judgment to express any opinion as to when theproviso can be applied and when it cannot. We are concerned with thefacts of this case and nothing more".
On the other hand Mr. Marapone cited the case of Nicholas WebbEdwards (17) which has considered some of the earlier English casestouching on the applicability of the ’proviso”. This was a case where theappellant was convicted of rape and the sole ground of appeal was thatthere was a failure to direct the jury on the standard of proof. Goff L. J.,in the course of his judgment stated: “It is plain that the failure of the Judgeto direct the jury on the standard of proof was a serious defect in the
summing upThat being so, we have to consider whether
we should exercise our powers under the proviso to section 2 (1) of theCriminal Appeal Act of 1968 to dismiss the appeal if we consider that nomiscarriage of justice has actually occurred. We consider this questionon the basis that there is.no absolute rule excluding the operationof the proviso In a case of this kind. Counsel for the appellant didnot submit that there was any such absolute rule. With this we ■agree". (The emphasis is mine) Having referred to the cases of Oliva,(18), Slinger, (19) and Sparrow, (20) the learned Judge proceeded tostate, “From those cases it appears that in such a case, as in any othercase, the court must consider the operation of the proviso in the light ofthe particular facts of the case. There are various formulations in thecases of the principle underlying the proviso. We shall, adopting thewords of Viscount Simon L. C. in Stirland v. D. P. P., (21) ask ourselveswhether on the evidence, a reasonable jury properly directed on thestandard of proof, would without doubt have convicted the appellant".Thus it is seen that this judgment delivered in 1983 is an authority for theproposition that there is no absolute bar to the application of the “proviso”where there is a nondirection on the standard of proof. The case of Oliva,(18) was not followed.
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It is to be noted that our Court of Criminal Appeal in Rex v. WijedasaPerera, (22) has adopted as the proper test to determine whether the“proviso” should be applied, the following test formulated by ViscountSimon L. C. in Stirland v. D. P. P., ;“A perverse jury might conceivablyannounce a verdict of acquittal in the teeth of all the evidence, but theprovision that the Court of Criminal Appeal may dismiss the appeal if theyconsider that no substantial miscarriage of justice has actually occurredin convicting the accused assumes a situation where a reasonable jury,after being properly directed, would, on the evidence properly admissible,without doubt convict" (1944 A.C. 315 at 321).
On a consideration of the cases cited before us, I am of the view thatthere is no hard and fast rule that the “proviso" is inapplicable where thereis a nondirection amounting to a misdirection in regard to the burden ofproof. What is important is that each case, falls to be decided on aconsideration of (a) the nature and extent of the nondirection amountingto a misdirecton on the burden of proof, (b) all facts and circumstancesof the case, the quality of the evidence adduced, and the weight to beattached to it.
This brings me to a consideration of the evidence in the instant case.The case for the prosecution rested upon the testimony of Nesaratnam,the widow, and Wijayaluksamy, the daughter of the deceased. Accordingto Nesaratnam, they had dinner at about 8.45 p.m. and had retired to bedat 9 p.m. Around mid-rnght she heard a voice calling out the name of herhusband. She opened the door and came out to the compound. Sheidentified the appellant who was armed with a gun. There was moonlightthat night. She had asked “who it is ?" and the appellant had replied “isit you ?". Shortly thereafter the deceased who was also sleeping insidethe house, had come up to the spot where she was standing. Thedeceased too had asked “who are you" whereupon the appellant had shotthe deceased. The deceased had touched his chest and fallen on theground. At the time the shot was fired, the deceased was about 6 feetaway from the appellant. She and her daughter Wijayaluksamy startedraising cries. The appellant had then breached the gun and had taken acartridge from the belt around his waist and re-loaded the gun. Then sheand the daughter had run into the house. She kew that the appellant hada licensed gun. Under cross-examinaton she stated that there was a landdispute between her brother and the son-in-law of the appellant, namely,Dominic. It was her position that Dominic was standing inside thecompound, a little away from the appellant at the time of the shooting, shefurther stated that the deceased had not consumed liquor that day.
SC Mannar Mannan v. The Republic of Sri Lanka (Thambiah, A.C.J.)291
The daugher Wijayaluksamy was also an eye-witness to the shootingby the appellant. Her evidence provided strong corroboration of theevidence of her mother. Apart from the evidence of the two eye-witnesseswho had made prompt statements to the Police, there was the medicalevidence which corroborated the version of the prosecution witnessesthat the shooting was at very close range. The post mortem reportrevealed that there was one entry wound with “burnig, blackening,tatooing and singeing”. The doctor stated that the assailant would havebeen 5 to 6 feet away from the deceased and that one shot could havecaused all the injuries.
The evidence of Police Sergeant Paramanandan was that the appellantalong with Dominic had come to the police station at 1.20 a.m. on28.10.77. The appellant had handed over a gun which was found to besmelling of burnt gun powder. The Inspector of Police had visited thescene in the early hours of the morning and had seen the body of thedeceased lying in the front compound of his house. Near the body hefound a spent cartridge which supports the evidence of the eye-witnessesthat the appellant breached the gun. The Inspector further stated that itwas a poya day and “at that time there was moonlight like sunlight”.
The appellant made a statement from the dock. According to him, thedeceased was a good neighbour and a friend of his whom he had alwayshelped. There was a dispute between his son-in-law Dominic and abrother of Nesaratnam over a boundary fence. The essence of hisposition was that it was not he who shot the deceased, and at the time ofthe alleged shooting he was sleeping at home. Dominic had told him thatthe decassed who was drunk that night had called him into his compoundand had an "argument" with him over the boundary dispute. Dominic hada gun with him as he had gone shooting “wild boar" that night. Dominic hadfurther told the appellant that he (Dominic) got involved in a “scuffle” withthe deceased and the deceased got shot accidentally.
On a consideration of the totality of the evidence it seems to me thatthe case against the appellant was a formidable one. The firing was atvery close range and the incident took place within the compound of thedeceased. There was bright moonlight that night. The appellant was aneighbour and well known to both Nesaratnam and the daughter. Thusthere was ample opportunity for the two eye-witnesses to accurately andproperly identify the assailant. According to the appellant, the deceasedwas on very cordial terms with him. Why then should the widow arid the
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daughter falsely implicate the appellant, if in truth he was not even at thescene ? There is nothing in the evidence to suggest a reason for theprosecution witnesses to falsely implicate the appellant. If the gun whichDominic had with him went off accidentally, why should the appellant beimplicated and not Dominic ? On a scrutiny of the evidence, I am satisfiedthat there was an overwhelming case against the appellant. The appellant'sstory, as set out in the statement from the dock, is altogether unworthy ofcredit.
While the general directions in the summing up on the burden of proofand the standard of proof were adequate, yet, as rightly submitted by Mr.Abeysuriya, there was a total failure to direct the jury on the impact of thedock statement on the evidence led on behalf of the prosecution.Nevertheless, I am of the view that a reasonable jury properly directedwould inevitably and without doubt have returned the same verdict. Thejudgment of the Court of Appeal is accordingly affirmed and the appealis dismissed.
I wish to place on record my deep appreciation of the full assistancegiven by Mr. Abeysuriya and Mr. Marapone, the Additional Solicitor-General.
H. A. G. de SILVA, J.—I agree.
JAMEEL, J — I agree.
I have had the advantage of reading the judgments of my Lord the ActingChief Justice Tambiah, J. and my brother G. P. S. de Silva, J. and I agreewith their conclusions. As the facts have been dealt with in the judgmentof my brother de Silva, J. and the law and authorities cited have beenexhaustively considered in both judgments suffice it to say that in thecourse of submissions learned President's Counsel for the accused-appellant sought to argue that wherever there has been a wrong decisionon a question of law in the course of a criminal trial and that question oflaw related to the burden of proof, then, the proviso to section 334(1) ofthe Criminal Procedure Code, Act 15 of 1979 ought never to be applied.In effect Counsel sought to compartmentalise the area of law relating to“ burden of proof ”, as being an area so fundamental and vital to a properand fair trial that an error made therein must have the effect of vitiating anyverdict of conviction ; which conviction must then of necessity be struck
Wijenaike v. Air Lanka Limited and Others
down regardless of whether a substantial miscarriage of justice has notactually occurred. I see nothing in the text of section 334(1) aforesaid orin the objects of the Procedure Code to warrant such a view. Nor am I ableto agree with appellant's Counsel that upon the authorities cited by himthere exists in Sri Lanka a cursus curiae supporting such a proposition.
Learned President’s Counsel for the respondent has demonstratedthat even in the United Kingdom the correctness of the decision in B. D.Olivia's case (18) which is a decision favouring the appellant’s arguments,has been doubted in Stinger’s case (19), Sparrow's case (20) andEdward's case (17) and not followed. The case of Rex v. Landy, Whiteand Key (16) does not help the appellant. In my view the proposition oflaw as formulated on behalf of the appellant in this appeal is too sweepingin nature and if adopted might actually introduce an undesirable elementof rigidity into the law besides resulting in mischief.
The judgment of the House of Lords in Siirland v. D.P.P. (21) has beenreceived and adopted in Sri Lanka for many years, and the testssuggested there have influenced the development of the law in this area„ in this country. It provides for a flexible and sensible approach to the factsand circumstances of each case which must be the underlying criteria ofdecision and is consonant with the language of section 334(1) of theCriminal Procedure Code.I am satisfied that this is an appropriate casewhere the exception could be applied. For these reasons I dismiss thisappeal.