MENDIS AND ANOTHER
v.THE REPUBLIC OF SRI LANKA
SUPREME COURTCOLIN -THOME, J.
. RANASINGHE, J. AND L. H. DE ALWIS, J.
S.C. APPEAL N0..33/84HC GALLE NO. 51701 AND 02 OCTOBER 1985
Criminal Procedure – Section 334(1) of the Code of Criminal Procedure Act No.15 of 1979 – Right of Court of Appeal to quash conviction if the Court holds thatthe verdict of the jury is unreasonable or cannot be supported having regard tothe evidence.
An appeal against a conviction based on the verdict of the jury will be allowed ifthe Court thinks that the verdict of the jury should be set aside on the ground thatunder all the oircumstances of the case it is unsafe and unsatisfactory. Theverdict of the jury should be set aside in such a case even though all the materialwas before the jury and the summing-up was impeccable. The verdict of the juryis unreasonable where it is not sound or sensible or not governed by good sense.
In a case where the material evidence on identification was contradictory andbased on inherent inconsistencies and improbabilities the verdict of guilty cannotbe allowed to stand as it would be unsafe and unsatisfactory.
Cases referred to:
Gardiris Appu v. The King 52 NLR 344,348.
Sinniah Palaniyandy v. The State 76 NLR 145.
The King v. Andris Silva et al. 41 NLR 433.
The King v. Wegodapola 42 NLR 459,469.
Rex v. Don Andrayas & Attapattu 21 CLW 93, 97.
The King v. Mustapha Lebbe 44 NLR 505, 507.
Bradley (1910) 4 Cr. App. R 224,228.
Parker [1911) 6 Cr. App. R 285, 286.
Schrager (1911) 6 Cr. App. R 253,254.
Chadwick(1911) 12Cr. App. R 247, 250.
Hall (1919) 14 Cr. App. R 58, 64.
Scranton (1920) 15Cr. App, R 104,110.
Armstrong(1922) 16Cr.App.R 104,110.
Margulas (1922) 17 Cr. App. R,3, 5,
Shefsky (1922) 17 Cr. App. R 28,29.
Wallace (1931) 23 Cr. App. R 32,35.
Dent (1943) 29 Cr. App. R 120,125.
Sean Cooper (1969) 53 Cr. App. R 82,85.
Stafford v. D. P. P. (1973) 3 WLR 719. '
APPEAL from Judgment of the High Court of Galle.
Dr. Colvin R. De Silva with Mrs. Manourie Muttetuwegama, N. V. De Silva and MissSaumya De Silva for 2nd and 3rd accused-appellants.
Rohan Jayatilleke, SSC for Attorney-General.
Cur adv vult.
5th December, 1985.
The accused-appellants who were the second and third accusedin H.C. Galle Case No. 517 were indicted along with three othersunder seven counts. The first count was a charge of unlawfulassembly the common object of which was to cause injuries toGeesin Perera. The second to the fourth counts were based on theliability of the accused for the acts of one or more members of theunlawful assembly in furtherance of the common object in causingthe death of Geesin Perera and in the attempted murder of SendrickPerera and Sunil Perera. Counts 5, 6 and 7 charged the accused withthe murder of Geesin Perera and the attempted murder of SendrickPerera and Sunil Perera on the basis of a common intention.
At the close of the trial the jury by a divided verdict of 6 -1 foundall the accused not guilty on counts 1,2,3, 4, 6 and 7.:The jury foundthe:'Second and third accused guilty of the murderibjf Geesin Pereraunder count 5. They were sentenced^ death.
The appeal erf .the accused-appellants to the Court of Appeal wasdismissed. The appeal is from the judgment of the Court of Appeal.The main submissionvof learned Counsel for the accused-appellantsis that the Court of Appeal has misconceived the scope andapplicability of section 334 of the Code of Criminal Procedure Act,No. 15 of ,1979, in refusing to interfere with the conviction of theappellants 'as the verdict of the jury was “unreasonable or cannot besupported having regard to the evidence”.
The alleged offences were committed on or about the 31stOctober 1976 at Balapitiya. Count 5 states:
5. At the same time and place aforesaid and in the course of
. the same transaction you did commit murder by causing thedeath of M. Geesin Perera, and that you have therebycommitted an offence punishable under section 296 read withsection 32 of the Penal Code.
The main witnesses for the prosecution were Sendrick Perera andSunil Perera, who received gunshot injuries during the incident, andChandra Somawathie, the daughter of the deceased Geesin Perera.As this was a case of night shooting the identification of the suspectswas a crucial issue.
According to Dr. G. T. Dalpathadu the deceased had 14 gunshotinjuries consisting of 9 entrance wounds and 5 exit wounds. Therewas a gunshot injury near the left nipple which had lacerated the leftlung and fractured the 4th rib. This injury was necessarily fatal. Therewas an injury on the left side of the abdomen which lacerated thesmall intestines. This injury was fatal in the ordinary course of nature.There were 5 injuries on the left thigh and 3 injuries on the right thigh.
He also had 4 injuries close to the left knee. The spread of the injuriesfrom, chest to knee was 20 inches. This fact together with theabsence;, of blackening and. singeing on the wounds indicated thatthe shooting was at a range df about 15 to 30 yards or more though,of course, the doctor admitted that'he was no ballistics expert. Thedirection of the sb&tjng'was^Trbm front and a little to the right. Thedoctor was unable to say whether the injuries were caused by oneshot or more than one shot, f-te recovered a pellet frem the abdomenof the deceased.
The doctor examined Sendrick Perera On 31.10.76 at 10 p.m.Sendrick had a gunshot injury 3 inches below the left knee and anexit wound on the outer side of the left leg. This injury had caused afracture of the leg. The shooting was not at close jangb; Sendrick toldhim that "Sirisena (5A), Siriwardene (3A), Upaseria (2A) and Wijesiri(4A) shot at about 8.15 p.m..,at Weliwattef Sendrick told him thatthese persons fired four shots.
The doctor examined Sunil Perera on 31.10.76 at If p.m. Sunil toldhim that “Siriwardene (3A), Upasena (2A) and Wijesiri (4A) shot atWeliwatte at 8.15 p.m.” Sunil had a gunshot injury on his right thighand another injury close to that injury from which he removed a pellet.This injury was non-grievous.
Sendrick Perera, aged 68 years, brother of the deceased Geesin,lived about 80 feet from the deceased’s house. On the day of theincident at about 8 p.m., he heard shouts “being killed”. He rantowards the deceased’s house. Geesin said “have come to shoot”and pointed out the 2nd, 3rd, 4th and 5th accused. They were theonly accused present. The 1st accused was not there. Geesin was onthe foundation in front of his house and about 22 feet away were thefour accused inside Geesin’s land about 2 or 3 feet from the fence.Beyond the fence was a breadfruit tree in a garden belonging to avillager. Upasena, the 2nd accused, and Siriwardene, the 3rdaccused, had guns. Wijesiri, the 4th accused, had a sword andSirisena, the 5th accused, had a iron rod or a club. In his statement tothe doctor and to the Police Sendrick did not mention that the 4thaccused had a sword and that the 5th accused had an iron rod orclub.
Sendrick stated that just as he warned Geesin to take cover;thesecond and third accused fired their guns at about the same- tirrte.Both the deceased and he received injuries. Under cross-examination he said “Upasena (2A) fired the first shot and my brother■received it. The second shot was fired by Siriwardene, (3A). I did nothear any shots when I was at home.” In his statement to the police hestated. “Last night when I was at home l heard a report of a gun fromthe direction of the'railway.” This contradiction was marked D2.
He stated that there was no enmity with the accused. He deniedmaking the statement to the police: “Then, as there was a tensesituation for the last two or three days I went to my brother's housecrossing the garden.” This contradiction was marked D3.
He stated that he told the doctor that only the 2nd and 3rdaccused fired their guns. According to the doctor Sendrick informedhim that all four accused fired four shots.
Sendrick said that he did not see SomawatHie at anystage. Hesaid: “They were inside the house having closed the doors at the timeof shooting.”
At the time of the shooting he was 17 feet from the deceased and35 feet from Sunil. He was between the deceased and Sunil at thetime.
Sendrick stated that he identified the accused with the aid of thelight from three bulbs in the Weaving Centre and by moonlight. Thelight from the Weaving Centre did not fall at the foundation whereGeesin was and where he was. According to Police SergeantJayakody there was bright light at the foundation from two bulbs atthe Weaving Centre.
Sunil Perera, nephew of the deceased, lived in a house about 80feet from the deceased’s house. Their houses faced oppositedirections. On the day of the incident at about 8 p.m. he heard areport of a gun from the railroad. He saw the 2nd, 3rd, 4th and 5thaccused together by the edge of the road. The 1st accused was notwith them. He did not see the 1st accused anywhere that night.
' H©vwas able to see the accused as there was moonlight and lightfrbfri ,the Weaving Centre; They had. weapons like clubs. He saw themfrom near a billin tree behind his .house. He did not see any of theaccused with a sword. He did not see the 2nd, 3rd and 4th accusedhaving a gun. He admitted that if he told the doctor that the 2nd, 3rdand 4th accused fired guns at 8.15 p.m., it would be incorrect.
Sunil stated in cross-examination that he did not see anyone takecover behind the breadfruit tree. He admitted he stated to the police:"Then when I was on the road l .saw Upaseha Mendis, SiriwardeneMendis, Wijesiri and Corporal Sirisena by the side of the road in frontof Alison Zoysa’s land taking cover behind a breadfruit tree.”(D5)
He stated that two shots were fired one after another. A pelletstruck his right thigh. He ran to the Weaving Centre:where there weretwo policemen. He did not.tell ,them who-shot.
Sunil* stated at first that there was no enmity with the.accused.Later he stated: “There was a row. They cut Alison’s hand. I do notknow who cut.”
He stated that the distance from the foundation to where theaccused were was 60 feet contradicting Sendrick. He heard threegunshots while Sendrick heard only two. The foundation could not beseen because of darkness.
Chandra Somawathie, daughter of the deceased, was about 15years of age at the time of the incident. She said at about 8 p.m. sheheard a shot from the railroad. The deceased and she went to theverandah oHAIison’s house which was only about 6 feet away. Thenshe saw Peiris Mendis, the 1st accused, going along the road with atorchlight. When he got near the breadfruit tree he said to the otheraccused: “Why do you wait further, Thiyapiyaw." Then the deceasedgot on the foundation as if to make himself an easy target for hisassailants. The 2nd, 3rd, 4th and 5th accused who were taking coverbehind the breadfruit tree came to the road. Under cross-examinationshe stated that she did not see the accused take cover behind thebreadfruit tree.
The 2nd and 3rd accused who had guns leveled their weapons atthe deceased and fired. The deceased ran some distance oh thefoundation and fell. She did not see any accused with an iron,rod,
She could not say whether the foundation was;well lit. Sheidentified the accused by the light from the Weaving Centre whichwas about 50 feet from the foundation.
Soon after the shooting a crowd of about 20 or 25 persons
gathered at the scene. She did not tell anyone who shot her father.
Somawathie was the only witness who stated that the 1st accusedwas at the scene inciting the other accused with guns to shoot. Shedid not see Sendrick and Sunil at the place where the shooting tookplace. Learned Senior State Counsel jettisoned her evidence in theCourt of Appe'al presumably because the jury had rejected herevidence at the trial.
Romalyn .Alwis, wife of Alison Zoysa, stated that on the day of theincident the deceased and Somawathie came to the verandah of herhouse. From the verandah she saw 2 or 3 persons taking coverbehind the breadfruit tree. She could not identify them as it was adark night and as there were trees obstructing her view. It was darkunder the breadfruit tree. After the deceased and Somawathie left herverandah she heard two shots.
J. A. S. Jayakody, Police Sergeant 2181, who visited the scene onthe night of the incident found stains like blood on the right side ofthe foundation trailing towards the deceased’s house. The light fromtwo bulbs in the Weaving Centre fell near the breadfruit tree as wellas on the foundation. There was a fence between the foundation andthe breadfruit tree. It was a live fence about 4 to 5 feet high. Therewere shrubs and coconut trees as well. The fence was about 20 feetfrom the foundation. The girth of the breadfruit tree was about 4 feet.
Inspector K. T. Jacob who visited the scene at 9 a.m. the followingday found two under waddings (P7) near the breadfruit tree and a topwadding (P6) on the foundation. He found pellet marks on the leavesof the breadfruit tree at a height of about 4 feet.
Section 334 (i) of the Code of Criminal Procedure Act, No. 15 oft979,j which is based on section 5(1) of the Court of Criminal AppealOrdinance, No. 23 of 1938, indicates the circumstances under whichthe Court of Appeal can quash a conviction if the Court holds that theverdict of the jury, inter alia, is “unreasonable or cannot be supportedhaving regard to the evidence." It states:-
334. (1) The Court of Appeal on any appeal against convictionon a verdict of jury shall allow the appeal if it thinks that suchverdict should be set aside on the ground that it is unreasonableor cannot be supported having regard to the evidence, or thatthe judgment of the court before which the appellant wasconvicted should be set aside on the ground of a wrongdecision of any question of any law or that on any ground therewas a miscarriage of justice, and in any other case shall dismissthe appeal:
Provided that the court may, notwithstanding that it is of opinionthat the point raised in the appeal might be decided in favour of,. the appellant, dismiss the appeal if it considers that nosubstantial miscarriage of justice has actually occurred.
In Gardiris Appu v. The Kihgm the Court of Criminal Appeal held(per Dias, S.P.J.) that: “The powers of this Court to quash the verdictof a jury in a proper case being undoubted, the difficulty is to knowwhen such powers should be invoked and in what cases the verdictof the jury in an apparent case of hardship should be allowed tostand . . . These (the general principles) may be summarised thus:Questions of fact are for the jury. The Court of Criminal Appeal doesnot sit to retry cases, thereby usurping the functions of the jury : ThisCourt sits as a Court of Appeal, and if there has been nomisdirection, no mistake in law, and no misreception of evidence,cannot upset the verdict of the jury even though the Court feels thathad the members of the Court been on the jury, they would havecome to a different conclusion from th& one which the jury reached.This, however, is not an inflexible or hard and fast rule to be appliedrigorously and indiscriminately to every case. Each case must bedecided on its peculiar facts and circumstances. The Ordinance whichdefines our powers has enacted that there may be cases where thisCourt will interfere, and should interfere, on the ground that the
verdict of the jury is unreasonable, that is to say, not sound orsensible, or not governed by good sense. The question is whether thisis such a case.”•
T)ias, S.P.J. has interpreted the expression; “unreasonable” inSection 5(1) of the Court of Appeal Ordinance, NO. 23 of 1938, as“not sound or sensible or not governed by good sense,” following thedefinition of the word in the Shorter Oxford Dictionary as "not actingin accordance with reason or good,sense.”
In Sinniah Palaniyandy v. The State (2), Alles, J. seems to give amore restrictive interpretation to-the expression “unreasonable". Atpage 156 he states: “The unreasonableness of a jury verdict does notmean and cannot mean that the Court is entitled to substitute its viewof the facts for that found by the jury. Numerous decisions of thisCourt have laid down the principle in unmistakable terms in AndrisSilva ®', Wegodapola <4), Don Andrayas &nd Attapattu <5V MustaphaLebbe w. These are early decisions of this Court which have hithertobeen consistently followed, but this is a principle that does notappeal to be sufficiently appreciated today. When, for instance therehas been an unanimous verdict of a jury who have accepted theevidence of direct eye-witnesses, even if there are criticisms that canbe made about that evidence, these are matters that mustnecessarily have been brought to the notice of the jury by competentCounsel and if the jury, in spite of these infirmities, have chosen toaccept the evidence of the eye-witnesses, it would be a usurpation ofthe functions of the jury, for this Court to substitute its verdict for theverdict of the jury. The only exception to this rule would be if themisdirections or non-directions are of such a substantial nature whichmight have affected the jury’s verdict-resulting in a miscarriage ofjustice or it can be demonstrated that the verdict of the jury isperverse, and not merely because the members of this Court feelsome doubt about the correctness of the verdict."
Dr. Colvin R. De Silva submitted that the Court of Appeal has beeninfluenced by the misinterpretation of the word “unreasonable" as"perverse" in the judgment in Palaniyandy’s case (supra) and that awrong stress has been incorrectly focussed in interpreting the word"unreasonable".
-in The King v. Andris Silva et al(3> the Court of Criminal Appeal heldfh'at in an.appeal involving questions of fact only it is not the functionof the Court of Criminal Appeal to retry a case, which has alreadybeen deciddd-by. a jury. The Court in such a case is only required tosay whether the, .verdict of the jury is unreasonable or wh’ether itcannot be supported- having regard to the evidence. The Court ofCriminal Appeal in The King v. Wegodapola w and in Rex v. DonAndrayas & Attapattu™ followed the dicta in Andris Silva's case(supra) without a clarification of the .interpretation to be given to thephrase “unreasonable or cannot be supported having regard to theevidence."
In The King v. Mustapha Lebbe (6!,the Court of Criminal Appeal ininterpreting the phrase “unreasonable or cannot be supported havingregard to the evidence” followed the dicta in English cases and held(per Moseley, S.P.J.) that the Court of Criminal Appeal will notinterfere with the verdict of a jury unless it has a real doubt as to theguilt of the accused or is of opinion that on the whole it is safer thatthe conviction should not be allowed to stand.
Section 5(1) of the Court of Criminal Appeal Ordinance No. 23 of1938, followed precisely section 4(1) of the Criminal Appeal Act,1907, of England. It will be convenient now to examine theinterpretation given to the phrase “unreasonable or cannot besupported having regard to the evidence” by the Court of CriminalAppeal in England.
In Bradley™ the appellant was charged with rape. The Court held(at 228) that “On the whole we think it safer that the conviction shouldnot be allowed to stand. There was not sufficient evidence before thejury to justify them in concluding that the girl did not consent."
In Parker™ the Court held that “There is, therefore, a sufficientdoubt as to the accuracy of the verdict for us to give the appellant thebenefit of it.”
The Court of Criminal Appeal held in Schrager,9> that “On theevidence of the prosecution the case against him was very doubtful,and in all the circumstances it did seem to the Court that there was areasonable and substantial amount of doubt as to the guilt of theappellant.”
In Chadwick™ the Court held that “In view of all the facts, thisCourt has come to the conclusion that the verdict of the jury shouldbe set aside on the ground that it cannot be supported by theevidence, and that the convictions are unsatisfactory and must bequashed.”
The Court of Criminal Appeal held in Hall™ (per Reading, L.C.J.)that “With this evidence before us we think that on the whole it wouldnot be safe to allow the verdict of the jury to stand. We are preparedto exercise our powers under s. 4 of the Criminal Appeal Act, 1907,and say that the verdict should be set aside. The appeal will thereforebe allowed and the conviction quashed. We may add that, in ouropinion, the summing-up of the Learned Judge was quite complete,and that his direction to the jury was most careful.”
In Scranton <12)the Court held that “the conclusion which they hadcome to in this case was that the evidence was not satisfactory tosupport conviction.” In Armstrong <13) the Court had to decide"whether it was safe to convict the appellant in this state of theevidence."
The Court held in Margulas (,4) that the “evidence cannot beconsidered sufficient.” The conviction was quashed. The Courtobserved that “No complaint can be made of the summing-up.” InShefsky™ it was held that “In these circumstances it appears to theCourt that the evidence is insufficient, and the conviction unsafe andunsatisfactory.”
In Wallace™ it was held that the case against the appellant “wasnot proved with that certainty which is necessary in order to justify averdict of guilty, and, therefore, it is our duty to take the courseindicated by the section of the statute to which I have referred (s. 4,Criminal Appeal Act, 1907).” In Dent™ it was held that “this is aconviction which cannot be safely allowed to stand."
A long- line of English cases has interpreted the phrase“unreasonable or cannot be supported having regard to theevidence” as “unsafe” or “unsatisfactory”. This interpretation wasadopted by Moseley, S.P.J. in The King v. Mustapha Lebbem.
In England this interpretation has now become incorporated in astatute. The relevant portion of section 2 of the Criminal Appeal Act1968 (U.K.) reads:-
2. (1) Except as provided by this Act, the Court of Appeal shallallow an appeal against a conviction if they think –
(a) (as amended by section 44 of the Criminal Law Act 1977)that the conviction should be set aside on the ground thatunder all circumstances of the case it is unsafe orunsatisfactory.
In Sean Cooperm the Court of Appeal (Criminal Division)observed (per Widgery, L.J.) that “The important thing about thiscase is that all the material to which I have referred was put beforethe jury. No one criticises the summing-up, and, indeed, Mr. Frisby forthe appellant has gone to some lengths to indicate that the summing-up was entirely fair and that everything which could possibly havebeen said in order to alert the jury to the difficulties of the case wasclearly said by the presiding judge. It is, therefore, a case in whichevery issue was before the jury and in which the jury was properlyinstructed, and, accordingly, a case in which this Court will be veryreluctant indeed to intervene. It has been said over and over againthroughout the years that this Court must recognize the advantagewhich a jury has in seeing and hearing the witnesses, and if all thematerial was before the jury and the summing-up was impeccable,this Court should not lightly interfere. Indeed, until the passing of theCriminal Appeal Act 1966 – provisions which are now to be found insection 2 of the Criminal Appeal Act 1968 – it was almost unheard offor this Court to interfere in such a case.
However, now our powers are somewhat different, and we areindeed charged to allow an appeal against conviction if we think that
the verdict of the jury should be set aside on the ground that under allthe circumstances of the case it is unsafe dr unsatisfactory. Thatmeans that in cases of this kind the Court must in the end ask itself asubjective question, whether we are content to let the reafter stand asit is, Or whether there is not some lurking dqubtiRdur minds whichmakes us wonder whether an injustice hasjbeen done. This is areaction which may. not be based strictly on the evidence as such; itis a reaction which can be produced by the general feel of the caseas the Court experiences it.”
In view of the decisionsln several English authorities referred to inthis judgment we are unable to agree with the observation in Cooper(supra) which states: “Indeed, until the passing of the CriminalAppeal Act 1966 – provisions which are not to be found in section 2of the Criminal Appeal Act 1968 – it was almost unheard of for thisCourt to interfere in such a case.” However, we agree with the rest ofthe dicta in Cooper (supra) quoted jn this judgment.
In Stafford v. D. P. Pm the House of Lords approved the judg'mentof Lord Widgery in Cooper, ante, as correctly stating the effect ofsection 2(1 )(a).
We agree with the interpretation given to the phrase “unreasonableor cannot be supported having regard to the evidence" by Moseley,S.P.J. in The King v. Mustapha Lebbe (supra) and in the Englishcases as unsafe or unsatisfactory. The verdict of the jury should beset aside on the ground that it is unsafe or unsatisfactory eventhough all the material was before the jury and the summing-up wasimpeccable. We hold that the expression “perverse" which accordingto. the Shorter Oxford Dictionary means being “obstinate or persistentin what is wrong” is too restrictive an interpretation of the phrase"unreasonable or cannot be supported having regard to theevidence.”
In the instant case learned State Counsel in the Court of Appealjettisoned the evidence of Chandra Somawathie. The presence ofunder-waddings near the breadfruit tree outside the fence and pelletmarks on the leaves of this tree demolish the testimony of SendrickPerera that the shooting took place inside the fence in the compoundof the: deceased. We are also mindful of the fact that Sendrick Pereratold the doctor on the night of the incident that four shots were firedby four accused. At the trial he stated that only two shots were firedby the 2nd "and 3rd accused. Both Sendrick Perera and; theremaining eye-witness Sunil Perera did not see the 1st accused atthe scene contradicting the evidence of Chandra Somawathie. SunilPerera, contradicted Sendrick Perera on a vital matter when heplaced the 2nd to the 5th accused at the time of the shooting on theedge of the road outside the fence. He did not see the 2nd, 3rd and4th accused with guns. He admitted that his statement to the doctoron the night of the incident that the 2nd, 3rd and 4th accused, firedshots was incorrect.
After due consideration of all the circumstances in this case wehave decided that we regard the verdict of the jury as unsafe orunsatisfactory and accordingly we allow the appeal and set aside thejudgment of,the Court of Appeal. The convictions of the 2nd and 3rdaccused-appellants are quashed.
RANASINGHE, J. – / agree.
L.H. DEALWIS, J.-/ agree.