Beemon Appuhamy v. The Queen
[Court of Criminal Appeal]
1971 Present : H. N. G. Fernando, C.J. (President), Silva, S.P.J., andWeeramantry, J.P. D. SEEMON APPUHAMY, Appellant and THE QUEEN,
C. C. A No. 110/70 with Application No. 171/70S. C. 184/70—M. C. Dambulla, 19971
Trial before Supreme Court—Summing-up—Misdirection.
The accused-appollant was convicted on a charge of attempted murder.The case was purely of word against word of the virtual complainant and thoaccused himself. According to tho accused, he used a knife in self-defence.The Doctor who examined the complainant was not called at the trial, but hi3deposition was read. – He had expressed an opinion in cross-examination thatthe injuries on the complainant could have been caused by the accused in anattempt to defend himself.
Held, that the omission of the Judge to make reference, in bis summing-up,to the passages from the deposition of the Doctor favourable to the accusedwas a misdirection on an important matter.
.ApPEAL against a conviction at a trial before the Supreme Court.
Ganesh (assigned), for the accused-appellant.
Noel TittawtUa, Senior Crown Counsel, for the Attorney-General.
H. N. G. FERNANDO, C. J. —Seemon Apptthamy v. The Queen
February 13, 1971. H. N. G. Fernando, C.J.—
In this case, in which the accused has been convicted on a charge ofattempted murder, the only persons who gave evidence as to the incidentwere the virtual complainant and the accused himself. The version of thecomplainant was that in the course of an argument he was suddenly setupon and stabbed by the accused. The accused on the contrary saidthat there was an attack by the complainant and that he fell on the groundwith the complainant lying over him. According to the accused, heused a knife to defend himself in the course of this struggle, and theinjuries on the complainant were caused in that way.
The Doctor who examined the complainant was not called at thetrial, but his deposition was read. In the course of cross-examinationhe stated as follows :
“ If the accused was on the ground and the complainant was overhim and the accused had used a knife indiscriminately, it is possible that'theise injuries could have been caused. All the injuries are on the leftside. He could have used a knife in his right hand and caused theseinjuries to defend himself.”
Thereafter in re-examination his evidence became even morefavourable to the accused :
“ Injury 1 could have been caused if the complainant was on theaccused and the accused had stabbed him and pulled the knifeupwards. Injury 1 may or may not be a result of a direct stab. ”
The learned Trial Judge directed the jury as to the defence of theaccused that he acted in self defence ; but unfortunately no referencewhatsoever was made in the summing-up to the passages from thedeposition of the Doctor which have been quoted above.. Consideringthat the learned Trial Judge himself appears to have overlooked thisimportant part of the Doctor’s deposition, it would be quite unsafe tothink that the jury did remember and take account of that part ofthe evidence.
This was a case purely of word against word, and the version of thedefence did receive much support from the opinions which the Doctorhad expressed. In view of the fact that there was no reference in thesumming-up to those opinions, there was a 'misdirection on animportant matter. In the result, the conviction has to be set aside.
In regard to the matter of ordering a re-trial, we take note of the factthat the accused is a person who does not have the use of his left arm,and there iB also evidence that he himself did sustain an injury on hiBleg in the course of this incident. We do not think it therefore necessary'that he should be put in peril a second time.
The conviction is quashed, and we direct that a verdict of acquittal beentered.
P. D. SEEMON APPUHAMY, Appellant and THE QUEEN, Respondent