if. S. U. i>£ij.vNAJNjju, U.J.—Piyadata v. The tjueen
[Co erat op CamiNAi, Appeal]
1971 Present: BL N. G. Fernando, C.J. (President), Alles, J.,and Samerawlokrame, J.
P.PIYADASA, Appellant, and THE QUEEN, RespondentC. C. A. Application No. 3 op 1971
8. O. 49dj69—M. O. Anuradhapura, 27198
Mai before Supreme Court—Verdict—Jury divided 4 to 3—Peeulting position.
Where the jury's verdiot upon a count in the indictment is divided 4 to 3,it is the duty of the Judge, if he is of opinion that the jury should reconsidertheir verdiot on that oount, to addresB them further after making some effortto ascertain the points upon which they have disagreed. If the jury retireagain without any such instruction, they ore liable to change their mindsmerely because a 4 to 3 verdict is not acceptable,
A PPEAL against a conviotion at a trial before the Supreme Court.
M. 8. Sameraueera (assigned), with Moitsoof Been, for the accused-appellant.
Noel Tittauella, Senior Crown Counsel, for the Attorney-General.
March 20, 1971. H. N. G. Febnando, C.J.—
At the close of the trial in thin case, in which the jury had to returnverdicts on two countB of murder, the jury upon being questioned bythe Clerk cif Assize, stated that they were unanimous on the 1st countbut divided 4 to 3 on the 2nd count. The learned trial Judge theninformed them that an acceptable verdiot iB one which iB unanimousor 6 to 1 or 5 to 2, and that if the verdiot is 4 to 3 then the law requiresa retrial to be ordered. The jury retired again and returned quite soonthereafter and then brought in unanimous verdicts of guilt of murderon both counts.
Having regard to the evidence we see no reason to doubtthe correctness of the verdiot on the 1st count.
With regard to the 2nd count, there was some evidence upon which'the jury may have considered that Borne provocation had been offeredto the accused. Their inability to agree on their verdiot on thiB countis explicable on this ground, and it may well have been the case thatBorne of the jurors preferred to return on this count a verdict of culpablehomicide not amounting to murder on grave and sudden provocationalthough they ultimately returned a verdiot of murder on this oount.We have not before us any material upon which we can understandhow it was that the jurors, who were divided 4 to 3, were able to returna unanimous verdiot of murder after a few minutes of consideration.
Babyaingftd v. The Queen
The only material on record is that the learned trial Judge instructedthem that a verdict of 4 to 3 WaS unacceptable. In the situation whicharose, if the learned trial Judge did not record the 4 to 3 verdict andodor a re-trialj his alternative was to address the jury further aftermaking some effort to ascertain the points upon which they had disagreed;In the abience of any such instruction, the only reasonable inferenceis that the jiiry changed their minds merely because a 4 to 3 verdictWas not acceptable; That being BOj the verdict of murder on the 2ndcount has to be Bet aside; As it happens; the accused did attiie beginning of the trial plead guilty of culpable homicide not amountingto murder on this count;
We think the ends of justice Would be met by fubstituting for theverdict on the 2nd count, a verdict of culpable homicide hot amountingto murder on the ground of grave and sudden provocation and we imposefor that count a sentence of ten (l0) 'years’ rigorous imprisonment.The verdicti and sentences on the lit and 3rd counts are affirmed;
Verdicts on lit and 3rd counts affirmed.
Verdict on 2nd count altered.
P. PIYADASA, Appellant. and THE QUEEN, Respondent