023-NLR-NLR-V-52-MARTIN-APPU-Appellant-and-THE-KING-Respondent.pdf
[Court of Criminal Appeal]
4950 Present: Dias S.P.J, (President), Gunasekara J. and Swan J.
MARTIN APPU, Appellant, and THE KING, RespondentAppeal No. 28 of 1950 with Application 63S. C. 25—M. C. Balapitiya, 64,019
•rDourt of Criminal Appeal—Statements in petition of appeal—Validity as fresh evidence—Summing-up—Misdirection.
The Court of Criminal Appeal may take into consideration statementsmade by the appellant in his notice of appeal although such statements referto matters outside the evidence given at the trial.
Where the evidence warrants it, it is the duty of the presiding Judgeto direct the jury that an act done with the knowledge that it was likely tocause death is distinguishable from an act done with the intention of causingdeath.
.^.PPEAL, with, application for leave to appeal, against a convictionan a trial before a Judge and Jury.
M. M. Kumarakulasingham, with N. Abeysinghe and K. A. P. Baja-Ikaruna, for the accused appellant.
A. C. M. Ameer, Crown Counsel, for the Crown.
Cur. adv. vult.
-July 31, 1950. Gunasekara J.—*
The appellant was convicted of murder. The deceased man died on•the 25th September, 1949, in ■consequence of a wound inflicted on him on•the night of the 22nd September. It was an incised wound on the axillaryaregion of the left side of the chest, six inches long and cutting throughthe ninth rib and the diaphragm and injuring the edge of the spleen.The case for the prosecution was based mainly on statements alleged toSlave been made by the deceased to the effect that the appellant had metSlim' on the high road in the neighbourhood of the appellant’s house and-had inflicted that wound with a sword. These statements were supportedby other evidence to the effect that soon after the attack on the deceasedthe appellant was seen within a hundred and fifty yards of the placewalking away with a katty in his hands; that when the police visited hishouse on the same night they did not find him there; and that ultimatelywhen they did find him, at 6.30 a.m., on the 27th September, they cameupon him as he lay under a tree in a jungle. The defence adduced noevidence.
It has been urged on behalf of the appellant that the presiding Judgemisdirected the jury on various matters foearing on the question whetherit was the appellant who inflicted the fatal wound and also that on thisissue the jury could not reasonably have accepted the case for the pro-secution. It is not necessary to discufes these grounds of appeal becausethe appellant has admitted in his notice of appeal that he inflicted thewound with a katty and he pleads that he did so in the exercise of theright of private defence. We would adopt, with all respect, the language.of the English Court of Criminal Appeal in R. v. James Nicholls1 wherethat Court said, regarding an allegation of a miscarriage of justice within,section 4 of the Criminal Appeal Act:
“ But on this question it has been decided that the court may takeinto consideration matters outside the evidence given at the trial.The court must take the whole circumstances into account, especiallystatements by appellant in bis notice of appeal, just as the court mayhear fresh evidence. If the court had had any doubt upon the evidencehere it would have, been entirely removed by the grounds stated in thenotice of appeal/’
It is also contended that the learned Judge misdirected the jury by-omitting to direct them that they should convict the appellant of culpablehomicide not amounting to murder if they were not satisfied that heacted with an intention to cause death but were satisfied that he causedthedeath of the deceased by doing anactwith theknowledge that he
waslikely by such act to cause death.Weare of opinion that there is
substance in this contention.. The learned Judge directed the jury thatif they were satisfied that it was the appellant who inflicted the fatalinjury they should find him guilty of murder or of voluntarily causing;grievous hurt with a dangerous weapon, according as they found that he didor did not intend to kill the deceased. He did not leave it open to themto find the appellant guilty of culpable homicide not amounting to murder.His omission to do so may well have led the jury to regard an act done-with the knowledge that it was likely to cause death as indistinguishablefrom an act done with the intention of causing death. We are unable tosay that they would without doubt have convicted the appellant of'murder even if their attention had been drawn to the distinction betweenthetwo states of mind, particularly asthelearnedJudge himself -took
theview that it was open to the jurytofind theappellant guilty of
voluntarily causing grievous hurt merely.
We quash the conviction of murder and substitute for it a convictionof culpable homicide not amounting to murder, and we sentence theappellant to eight years’ rigorous imprisonment.
Conviction altered.
{1908) 1 Or. App. R. 167 at 168.