002-NLR-NLR-V-57-NAMASIVAYAM-Appellant-and-THE-QUEEN-Respondent.pdf
[Covet of Ciir.tn.vAt, Appeal]
1954 Present: Rose C.J. (President), Gratiaen J. and Sanson! J.XAMASIVAYAM, Appellant, and THE QUEEX, RespondentApplication Xo. 35S. C. 20—31. C. Jaffna, 20,910
Trial before Supreme Court—Indictment—Power of Judge to quash it—Power ofJudge to stop a case—Effect offailure to exercise it—Separate trial of co-accused—Stage at which application for it should- be made—Criminal Procedure Code,s. 23J {/).
An Assize Judge lies no power to qimsh cn indictment before the ease for thoprosecution is closed merely because he anticipates that tho cvidenco wouldnot support the charge.
Although tho decision whether or not to stop a. er.se against any particulara.ccuscd person under section 231 (1) of tho Criminal l’roccduro Codo restsprimarily with tho presiding Judge, an erroneous decision that ft pritna faciecr.so had been made out against an accused jjerson docs not constitute anillegality which vitiates tho trial of his co-accused.
Where an accused person desires to call, as a witness for the defence, ft personjointly indiefod with him, tho proper course for him to take is to invite thoJudge at the outset to order separate trials.
i^-PPLICATIOX for leave to appeal against- a conviction in a trialbefore the Supreme Court.
E. Chilli/, with 31. 31. Kumaralulasingham and V. Ratnasabapathy,for tho accused appellant.
Ananda Pereira, Crown Counsel, for the Crown.
3Iay 25, 1951. Gratiaen J.—
The appellant and two others were jointly indicted with the murderof a man named 5!. Vaitliilingam Chcttiar, tho case for the Crown beingthat tho appellant had directly commit ted tho offence, whereas tho otherswere vicariously responsible for what ho had done in pursuance of tho^ontmon intention of them all. Tho appellant was convicted of murder,but verdicts of acquittal were returned in favour of the other accused.
At the conclusion of the argument wo affirmed tho appellant’s convictionbut stated that the reasons for our decision would be pronounced at alater date.'
After the accused persons had pleaded to the indictment, the jurywere empanelled and Crown Counsel opened the case for tho prosecution.Counsel for the defence, who at that stago represented all the accused,then moved that tho case against the 2nd and 3rd accused be withdrawnin limine from tho jury because the opening speech for tho Grown seemedto indicate that no evidence of common intention (tho only suggestedbasis of liability) would be available.against them. This submission was
rightly rejected as premature, and the trial then proceeded. A presidingjudge has no power to quash an indictment- merely because ho anticipatesthat the evidence would not. support, the charge—Ex parte Downes 1_During tire trial, arrangements were made for the separate represen-tation of the 2nd and 3rd accused persons in view of a possible conflictbetween their defences and that of the appellant.
At t-lre closo of tiro case for the prosocution, the learned judge,who presumably considered at that stage that there was a case for eachaccused to meet, called for a dofencc. In the course of his charge to thejury, however, —i.e., after the appellant had led some evidence and afterthe closing speeches of Counsel—lie directed them to return a verdictacquitting the 2nd and 3rd accused as thsro was “ no evidence ” of com-mon intention against them. He also gave them adequate and properdirections as to the only basis on which tho conviction of the appellantfor murder (or in the alternative, a lesser offence) would bo justified. .
Tiro summing-up with regard to tiro case against tire appellant was freeof misdirection, and tho verdict against tiro appellant, who had not givenevidence on his own behalf, is not open to criticism as “ unreasonableTiro main ground of appeal was, however, in the following terms :
“ By reason of the fact that tho 2nd and 3rd accused were heldas accused after the close of the case for the prosecution without being-discharged, as they should have been, the appellant was deprived ofhis right to call the 2nd accused into t-lre witness box to establish thefact that it was he and not the appellant -who inflicted the injuries ontho deceased in accordance with the statement made by the 2nd accusedto the 2>olice
Mr. Chitty conceded that an application had not been made- either onbehalf of t-lre appellant or on behalf of the 2nd and 3rd accused at the closeof the evidence for t-lre prosecution that there was no case for t-lre latterto meet. Nevertheless, he argued, it was the judge’s duty to direct thejury at that stage to return a verdict of “ not guilty ” iir their favour.While we agree that the decision whether or not to stop a case againstany particular accused person under section 234 (1) of the CriminalProcedure Code rests primarily with the presiding judge, wo certaintyreject the view that an erroneous decision that a prima facie case hadbeen made out against an accused person could ever constitute anillegality which vitiates the trial of his co-accused. Besides, althoughthe ovideoee of common intention against tho 2nd and 3rd accused int-lie prese nt case was weak, there was in fact sufficient evidence to justifythe decision to call upon them for their respective defences. Indeed,the ultimate direction “ as a matter of law that there was “ no-evidence ” against them was unduly favourable to them. But that isnot a circumstance of whic-h the appellant has cause to complain.
In this view of the matter, the entire foundation ot the appellant's-ground of appeal disappears. If the appellant had intended to callthe 2nd accused as his witness, the proper course to have adopted wasto ihvite tho judge at the outset to order separate trials. Archbold.
‘ {105-3) 3 Jib L. Tt. 5S0.
{32nd Edn.) p. 53 mentions, as one of the reasons which would justifya discretion to order separate trials, a situation whero one accused persondesires to call for the defence a person jointly indicted with him. Nosuch application was mado on the applicant’s behalf, nor was an intima-tion made to the presiding judge at any stage that the appellant mightpossibly be prejudiced (ns he now says he was) if the trial took a coursewhich would prevent him from calling tlie 2nd accused as a compellablewitness to support liis defence. Indeed, the appellant seems to be undulyoptimistic in assuming that, .if the 2nd accused had implicated himself inthe witness box as the person who actually stabbed the deceased, suchevidence would have been “ in accordance with the statement made by the2nd accused to the police IVe have examined this statement on whichthe appellant had apparently hoped to rely, and it is quite clear that the2nd accused said nothing to the police which either implicated himselfor exonerated tho appellant of responsibility for the stabbing.
For these reasons we made order dismissing the appeal and affirmingthe conviction.
Appeal dism i-ssed.