R. C. RAJAPAKSE and others, Appellants, and THE STATE, Respondent

003-NLR-NLR-V-77-R.-C.-RAJAPAKSE-and-others-Appellants-and-THE-STATE-Respondent.pdf


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Rajapakse v. The State
[Court of Criminal Appeal]
Present: H. N. G. Fernando, C.J. (President),
Wijayatilake, J., Deheragoda, J., Walgampaya, J., andWimalaratne, J.
R.C. RAJAPAKSE and others, Appellants, and THE STATE,
Respondent
Appeals Nos. 4-8 of 1973, with Applications 4-8
S.C. 427171—M. C. Maho, 22825
Criminal Procedure Code—Sections 230, 330—Verdict of Jury—Failureof Jury to understand directions of law concerning a difficult,topic—Prejudice caused to the accused in regard to certain seriouscharges against them—Power of Court to discharge the Jury then—Whether pleas of autrefois acquit or convict can be raised at thesecond trial—Plea of autrefois acquit—Whether it must be triedby the Jury.
H. N. G. FERNANDO, C.J.—Ttajapakse v. The State
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Five persons were indicted before the Supreme Court uponcharges, inter alia, of unlawful assembly and of the murder of twopersons A and B committed by one or more members of thatunlawful assembly. The Jury, however, found all the accusedguilty of the murder of A but returned a verdict of culpablehomicide only against the 4th and 5th accused in respect of thedeath of B. The verdict brought by the Jury showed that the Juryhad not understood the directions of law concerning the difficulttopic of vicarious criminal liability. The Jury was then dischargedand a fresh trial was held, at which the accused were convicted onboth the former charges.
Held, that, at the first trial, there was established such confusionin the minds of the Jury that it was quite unsafe to accept fromthe Jury a verdict involving the imposition of sentences of deathon five persons. The Jury was therefore properly discharged by theJudge in the exercise of the powers conferred on the Judge bysection 230 of the Criminal Procedure Code to discharge the jurywhenever in the opinion of the Judge the interests of justice sorequire. In the circumstances there was in law neither a convictionnor an acquittal at the first trial and no plea of autrefois acquit orconvict could arise for decision at the second trial.
Quaere, whether the plea of autrefois acquit is one that must betried by the Jury in a case before the Supreme Court.
A PPEALS against five convictions at a trial before theSupreme Court.
G. E. Chitty, with A. C. de Zoysa, Sarath Muttetuwegama,■Justin Per era, G. E. Chitty (Jnr,), G. L. M. de Silva, EverardRatnayake and J. N. David (assigned), for the accused-appellants.
Noel Tittawella, Deputy Solicitor-General, with T. M. K. U.Seneviratne, Senior State Counsel, and D. S. Wijesinghe, StateCounsel, for the State.
Cur. adv. vult.
September 25, 1973. H. N. G. Fernando, C.J.—
This appeal was set down for hearing before the present Benchof five Judges of this Court, because the Bench of three Judgesbefore whom the appeal had been earlier listed felt it desirablethat a statement of the law expressed in some previous decisionsis worthy of re-consideration. The statement was (as far as weare aware) first made in the judgment of this Court in the caseof Handy,1 61 N. L. R. 265 at p. 271.
“ The plea of autrefois acquit when pleaded is one thatmust be tried and disposed of before the issues raised bythe other pleas are tried (s. 330 (2)). The plea is one thatmust be tried by the Jury in a case before the SupremeCourt.’1
[1959) 61 N. L. R. 265 al p. 271.
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H. N. G. FERNANDO, C.J.—RajapaJcse v. The State
The circumstances of the case of Handy are briefly as follows :
The appellant was tried on two charges, of the murder of oneperson and the attempted murder of another. At the conclusionof the summing-up by the trial Judge, the Jury retired toconsider their verdict; and upon their return they stated inanswer to the usual questions from the Clerk of Assize that bytheir unanimous verdict they found the prisoner not guilty ofthe offence of murder and also not guilty of the offence ofattempted murder. The trial Judge then immediately stated :“ Don’t record this verdict. I refuse to accept this verdict. ” TheJudge thereafter made an order in which he quite clearly statedhis view that the defence in the case was palpably false, andthat the Jury had obviously not understood his directions on thelaw and on the evidence. The Jury was then discharged and afresh trial was held, at which the prisoner was convicted on boththe former charges.
In the judgment of this Court (delivered by Basnayake, C.J.)the questions for decision in the appeal were stated as follows : —
Is the trial Judge right in refusing to permit the verdict
to be recorded at the earlier trial ?
If he is not, has the appellant been acquitted at the first
trial of the offences of murder and attempted murder ?
If so, does the failure of the appellant at the second trial
to raise the plea that by virtue of Section 330 of theCriminal Procedure Code he is not liable to be triedpreclude this Court from examining the legality ofthe action taken by the trial Judge at the previoustrial ?
The judgment proceeded to refer to various provisions of theCode concerning the relative functions of Judge and Jury andheld as follows : —
“ In the instant case the Jury having, as they areempowered by the Code to do (s. 245 (a), decided whichview of the facts is true and returned a verdict which underthat view ought according to the directions of the Judge tobe returned, it cannot be said that the interests of justicerequire that they should be discharged without their verdictbeing recorded as provided in section 249 ”
Having thus decided that the order discharging the Jury wasunjustified, the judgment further held that effect could be givento the verdict of acquittal returned by the Jury at the first trial,even though that verdict had not been formally recorded andsigned as provided in S. 249. Accordingly, this Court thereafterordered a judgment of acquittal to be entered.
H. N. G. FERNANDO, C.J.—Rajapak.se v. The State
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We are thus far in entire agreement with the judgment inHandy’s case.
We note however that the passage in the judgment in Handy’scase which we have earlier cited, to the effect that the plea ofautrefois acquit “ is one that must be tried by a Jury in a casebefore the Supreme Court ”, consists of an observation which wasobiter in the circumstances of that case. The result of the decisionthat the order discharging the Jury was unlawful had the effectof reviving the verdict of acquittal actually returned at the firsttrial. Thus there was no necessity for this Court in Handy’s caseto decide whether it be Judge or else Jury who should try a pleaof autrefois acquit or autrefois convict.
In the case of Geedrick1 (63 N. L. R. 303), this Court againstated that a trial Judge had acted without jurisdiction in himselftrying a plea of autrefois convict and in not allowing the pleato be tried by the Jury. Although a great part of the judgmentin this case dealt with the matter of autrefois conuict, theultimate decision in appeal was stated thus : —
“ In regard to trial upon the indictment the accused hasbeen acquitted on counts 1, 2 and 3, all of which dependon the inference which may properly be drawn from therecent possession of property which had been stolen fromM. P. Gomez and Company. It is difficult to reconcilehis acquittal on counts 1, 2 and in particular count 3, withhis conviction on counts 4 and 5. We think that his convic-tions on counts 4 and 5 are unreasonable and we accordinglyquash those convictions and direct that a judgment ofacquittal be entered in respect of counts 4 and 5. ”
Thus we see that in Geedrick’s case also, there was no necessityfor the statement that a plea of autrefois acquit or convictmust be tried by the Jury. Indeed, it is not clear from thejudgment what order this Court would have made in the appeal,if the convictions had not been quashed as being unreasonable.
We pass now to consider the circumstances of the instantcase, and whether in such circumstances any plea of autrefoisacquit or convict did arise for decision.
Five persons were tried in November 1972 upon an indictmentcharging them on seven counts. At the conclusion of the trialthe Jury returned a verdict by which they convicted all fiveaccused on the first count of unlawful assembly, on the 2ndcount of mischief committed by one or more members of theunlawful assembly, and on the 3rd count of the murder of oneMuthuwa committed by one or more members of that unlawful
1 (1959) 63 N. L. R. 303.
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H. N. G. FERNANDO, C.J.—Rajapakae v. The State
assembly. The 4th count was also a charge of murder of oneElli by one or more members of the same unlawful assembly,but on this count the Jury returned a verdict of culpable homi-cide only against the 4th and the 5th accused. It is not necessaryfor present purposes to specify the findings on the remainingcounts. After the verdicts were returned, State Counsel suggestedto the learned Commissioner that the finding on count 4 and oncertain other counts showed some confusion in the minds of theJury and that he may ask them to reconsider their verdict.Counsel for the defence then stated that he did not think thatthis course would be proper. After some further discussionbetween Judge and Counsel, Counsel for the defence formallymoved for a discharge of the Jury and for an order of retrial.
The learned Commissioner at first refused this application, andhe proceeded to direct the Jury a second time under s. 248 (2)of the Code. The Jury retired after these fresh directions, butthe Judge was apparently not satisfied with the course whichhe had taken, and within a few minutes he recalled the Juryand discharged them. There was thereafter a second trial atwhich the plea of autrefois acquit was taken, but this wasrejected by the Court. At the conclusion of the second trial allthe accused were found guilty on counts 1 to 4, which includedthe two counts of murder committed by one or more membersof an unlawful assembly. In these circumstances the first questionwhich arises is whether s. 230 of the Code authorised the dis-charge of the first Jury on the ground that the verdict whichthey returned showed confusion in their minds regarding thelaw applicable to the case and the evidence which had beenadduced.
On the first, second and third counts, the Jury at the firsttrial decided that all five prisoners had been members of thesame unlawful assembly ; on the third count the Jury alsodecided that the murder of Muthuwa had been committed byone or more members of that assembly, and accordingly incompliance with the relevant law they convicted all five priso-ners of murder on this count. The verdict on the 4th count alsoindicated a finding that the death of Elli was caused by one ormore members of the same unlawful assembly ; on this finding,all five prisoners were (as in the case of the 3rd count) liablefor causing Elli’s death and should have been convicted of someoffence on the 4th count. The fact that the Jury convicted only2 prisoners on this count indeed showed that the Jury had notunderstood the directions of law concerning the difficult topicof vicarious criminal liability. It was undoubtedly for this reasonthat Counsel for the defence (a practitioner of much experience),and ultimately the learned Commissioner himself, felt it unsafe
H. N. G. FERNANDO, C.J.—-Bajapakse v. The State
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to act upon the verdict of murder on Count 3 which in fact theJury had returned in respect of all five prisoners. If the Jurymisunderstood the law when considering their verdict on Count4, their conviction of all five prisoners on the 3rd count of mur-der might equally have been due to a misunderstanding of thelaw. We ourselves think that when there is established suchconfusion in the minds of the Jury as was obviously present inthis case, it is quite unsafe to accept from that Jury a verdictinvolving the imposition of sentences of death on five persons.In such a situation it is eminently in the interests of the priso-ners against whom so grave a verdict has been returned that,they be permitted the advantage, which their counsel sought,of a fresh trial by a different Jury.
It is manifest from statements made in Handy’s case by thetrial Judge that he discharged the Jury because they returnedverdicts of acquittal, instead of the verdicts of guilty which hisown view of the facts would have justified.
In Ekmon’s case1 (67 N. L. R. 49), the trial Judge declinedto accept a verdict of simple hurt returned on a count chargingmurder, because on his view of the facts the Jury should havefound the accused guilty of a more serious offence.
In Arnolis Appuhamy2 (70 N. L. R. 256) the trial Judge dis-charged a Jury which returned a verdict of culpable homicide,because in his view of the facts the accused could not have actedin self-defence.
In each of these cases, this court held that the trial Judgeshould have accepted verdicts favourable to the accused, insteadof acting upon less favourable views of the facts entertained bythe Judge himself.
We agree that it is not in the interests of justice for a trialJudge to deprive an accused of the benefit of a favourable ver-dict for the reason that his views of the facts are less favourable.
The circumstances of the instant case are as different as theycould possibly be. Here the Jury had already returned a verdict(on the third count of murder) which if accepted by the learnedCommissioner inevitably called for the pronouncement of fivesentences of death. There was nothing favourable in that verdict,of which the prisoners were deprived, by the course taken bythe learned Commissioner.
One of Mr. Chitty’s early submissions was that the order dis-charging the Jury in this case was contrary to precedent. Thatsubmission had to be abandoned for obvious reasons.
62) 67 N. L. B. 49.
(1967) 70 N. L. B. 256.
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David v. Abdul Cader
Mr. Chitty ultimately argued that once the learned Commis-sioner acted under s. 248 (1) of the Code, and directed the Jurya second time, he had no “ jurisdiction ” to stop the processwhich he had thus set in motion, and he had necessarily to awaitand accept the second verdict which the Jury had been invited toreturn. We are quite unable to agree that the power conferredby s. 230 to discharge a Jury “ whenever the interests of justiceso requires ” is thus limited. What is obvious is that the learnedCommissioner was himself not satisfied that his fresh directionswould suffice to clear the minds of the Jury of the confusionwhich had previously prevailed, and that he ultimately agreedwith the submission of defence counsel that the interests ofjustice required that the prisoners have the benefit of a trial bya different Jury.
We hold for these reasons that the Jury was properlydischarged in the exercise of the powers conferred by s. 230 ofthe Code. That being so, there was in law no verdict upon whicha plea of autrefois convict could be based ; and it is nearly absurdto think that a plea of autrefois acquit could be maintained con-sidering that the Jury returned a verdict of murder against allfive prisoners on one of the counts. Thus in our opinion there wasin law neither a previous conviction nor a previous acquittal,and any question as to whether such a plea should be tried by aJudge or else by Jury does not arise for decision in this appeal.
We do not consider that any other questions of law or factwhich may be raised in this appeal need be decided by thepresent Bench. The appeal will now be set down for hearing inthe ordinary course.
Appeal to be listed for further hearing.