054-NLR-NLR-V-73-R.-H.-WEERASENA-and-another-Appellants-and-THE-QUEEN-Respondent.pdf
M'cerascna y. The Queen
300
[Court of Crishnal Appeal]
Present: H. N. G. Fernando, C.J. (President), T. S. Fernando, J.,and Abeyesundere, J.
R.H. WEERASENA and another, Appellants, and THEQUEEN, Responden t
:C. C. A. Appeals Nos. 145 and 146 of 1965, with ApplicationsNos. 189 and 190'
C. 86(67—M. C. GdUe, 47753 'x
Summing-up—Inadequacy of direction to jury upon a vital question—Effect—Burdenof proof—Misdirection.i .
The two appellants were charged with murder, and were convicted of culpablehomicide not amounting to murder. In regard to the only material witnessfor the prosecution, there were four circumstances which were indicative • oftho falsity of hia evidence. The vital question for the Jury was whether they,could bo certain that tho witness actually saw an assault on the deceased.
Held, that it was tho duty of the Judge to have sufficiently directed the'Jury on the vital question which they had to decide. .
. Held further,, that a direction to the Jury that there was a burden on theaccused to have proved that they had not been present at tho alleged scene ofoffence at the relevant time constituted a misdirection of law as to the burden.
. <ai‘ proof.
H. N. O. FERXAXDO, C.J.—Weerasena v. The Queen
301
Appeals
against two convictions at a trial before the Supreme
•Court.
Print Gunasekera, with K. S. Rajah (assigned), for the accused-appellants.
T. A. de S. Wijesundera, Senior Ctowd Counsel, for the Attorney -'Gencral.
-January 30, 1908. H. N. G. Fernando, C.J.—
The two appellants in this case were charged with the murder of oneSomaratne, and were convicted of the offence of culpable homicide notamounting to murder.
Sumathipala, the brother of Somaratne, was the prosecution’s onlymaterial witness, and he gave the following version. The two brothershad spent the morning of 2nd March 1967 tilling a field and were there-after returning home along a village road for the mid-day meal. Bothmen were carrying their mammoties, and Somaratne was walking ahead.Sumathipala suddenly saw these two accused jump on to the road, thel3t with an iron rod in hand, and the 2nd with a. club, and both of themassaulted Somaratne ; but he did not sec where any of the blows alighted.Somaratne then fell down. At this point, Sumathipala cried out, droppedthe mnmmoty he was carrying, and rushed tip to his brother. The 2ndaccused then struck Sumathipala a blow on his chest and lie fell downunconscious; when he regained consciousness, he found himself inhospital; ns a result of the assault on himself, he had injuries on hischest and mouth.
It- was proved, by evidence called by the defence, that both Somaratneand Sumathipala had been examined by a Doctor at the Xcboda Hospitalon the afternoon of 2nd March. But tlie prosecution led no evidencewhatsoever to inform the Court how they arrived at the Hospital, and bywhom they were taken. In view of the hospital testimony that Soma-ralne was examined and found to be in a semi-conscious state at 2.40 p.m.on the afternoon of 2nd March, it is highly probable that some assault onhim had rendered him immediately unconscious. It is therefore verylikely that someone took him to the hospital; and if .Sumathipala trulystated that he himself- became unconscious when he received a blow,he too could not have reached the hospital on his own steam. Theprosecution’s case being that both brothers had fallen unconscious onthe road, it is extraordinary that no witness who saw them lying fallenwas called to speak to that simple fact, and.that the prosecution didnot adduce evidence concerning the admission of Somaratne to theHospital.
Cur. ado. vult.
302
H. X. G. I'JERXAXDO, C.J.— » ’r-crascna i’. The Queen
1 Sumathii>ala’s evidence vas cast in grave doubt by the Doctor at thehospital. Examination of Suriiathipala at 3.30 p.in. on 2nd Marchrevealed no injuries on him. Moreover his version that,he received ablow on his chest and some injury to his mouth, conflicted with hisearlier statement to the Magistrate that he received a blow on histemple. No such injuries were mentioned to the Doctor or noticed onexamination.
Sumathipala said at the trial that when his brother was assaulted hesaw one Weeraratne at a distance. But he was positive that Weeraratnotook no part in the assault. Nevertheless he had slated to the Doctor atthe hospital that there had been an assault by these two accused and byWeeraratne. In fact, Weeraratne himself had been examined at theGallc Hospital on the night of 2nd Marcli and had then been found tobear injuries. There was no explanation from Sumathipala for theconflict between his different versions concerning this Weeraratne. Inregard to this matter, the learned trial Judge directed the. Jury asfollows:—
“ The defence sought to contradict him on that evidence again andplaced before-you a statement made by him to Dr. Fernando in whichhe had apparently said, or had said in fret that there was an assaultby the 1st accused, 2nd accused, and by this man Weeraratne orUp as aka. Gentlemen, you must- bear in mind that there is no directevidence or any evidence at all before you that Weeraratne waspresent there at all. This matter is put to you as some evidence givensomewhere else. The only evidence before you is that the 1st and2nd accused attacked and that Weeraratne neither attacked norreceived injury which was seen by Sumathipala. ”
There was here a misdirection in law, for the Defence proved by theDoctor’s evidence an admission by Sumathipala that Weeraratne hadparticipated in the assault. The direction deprived the Defence of thebenefit of that admission.
Somaratnc was found on examination at the hospital to be smellingof liquor. According to Sumathipala, he had been together withSomaratne from 7.30 p.m. until the time of the assault at or aboutnoon, and he was definite that Somaratne took no liquor that morning :—
“ Q- And on that day did you see him taking liquor ?
A. I did not.
Q.And he would not have had any opportunity because he waswith you together ?
A. That is so.”
The direction in the summing-up as to this matter was as follows :—
“ Witness Sumathipala protested right throughout in his evidence-that his brother did not drink that morning. Of course, Crown.Counsel says that all he did say was that he did not see his brother-
303
H. N. O. FERNANDO, C.J.—Wecrasena v. The Queen
. taking any drinks ; if he drank he would not have seen him taking anydrinks or he would not have drunk in his presence. It may be that heis lying on some material portions of his evidence. Is he lying becausethey were drinking some illicitly manufactured arrack and he does notwant to disclose that fact.”
In substance these directions drew attention only to the possibilitythat Sumathipala had incorrectly or falsely denied the fact that Soma-ratne did take liquor that morning. But the learned Judge perhaps didnot himself realise the graver implications of this matter. Somaratneundoubtedly took liquor that morning; and, if Sumathipala was on hisown showing not aware of this, the truth could well be that the brothershad not spent the morning together, and that Sumathipala had notwitnessed the assault on Somaratne. That was precisely the inferencewhich the Defence suggested in cross-examination, but the Jury was notinvited by the learned Judge to consider its validity.
In view of—
(а)the lack of evidence that the two brothers were found togetherunconscious or injured on the road, and of evidence concerning theirarrival at the hospital ;
(б)the apparent falsity of Sumathipala’s evidence that he himselfreceived injuries;
the conflict between Sumatliipala’s evidence, and his admission tothe Doctor, concerning W’ecra rat lie’s participation in the alleged assault;
Sumatliipala’s possible ignorance of the fact that Somaratneconsumed liquor;
the vital question for the Jury in this case was whether the}' could becertain that Sumathipala actually witnessed an assault on liis brother.The reference in the summing-up to the position of the Defence that“ Sumathipala is a liar ” was not in our opinion a sufficiently direct-presentation of the vital question which the Jury had to decide in theparticular circumstances of this case.
The following is the last reference in the summing-up to the factualaspects of the case :—
“ You will ask yourselves ‘ Could Sumathipala be mistaken aboutthe identification of these two persons ? ’ Well, there was no sugges-tion that they were elsewhere. You will ask yourselves, in broaddaylight, mid-day, whether they were at home or somewhere else.No evidence lias been called to show their presence at some otherplace other than the place where this incident took place.”
The Jury were quite clearly directed in this passage that they wereentitled to take into account the fact that the accused had not adducedevidence showing that they had not been at the alleged scene of thisincident at the relevant time. Despite correct directions which weregiven at earlier stages as to the burden of proof this passage could well
301
TEXXEK.OON, J.—Jayau-ardtna v. The Queen
have led fho Jury to think that a burden J.ry on the accused to prove thatthey had not been present at the alleged scene of this offence. Thepassage in our opinion thus constituted a misdirection of law as to theburden of proof.
For the reasons which we have now stated, we directed that-theconvictions of the accused and the sentences passed on them be quashed,and tliat verdicts of acquittal be entered. Having regard to the availableevidence, we saw no reason to order a fresh trial.
Accused acquitted.