127-NLR-NLR-V-74-R.-M.-GUNATILAKE-APPUHAMY-Appellant-and-THE-QUEEN-Respondent.pdf
636
Gunatilalcc Appuhamy v. The Queen
[Court of Criminal Appeal]
1970 Present:Sirimane, J. (President), Samerawickrame, J.,
and Wijayatilake, J.
R. M. GUNATILAKE APPUHAMY, Appellant, and THE QUEEN,
Respondent
C. G. A. 131 of 1969, with Application’ 190S. G. 240/GO—M. O. Kuliyapiliya, 43639
Trial before Supreme Court•—Verdict of jury based on a pure finding of fact—Powerof judge to direct the jury to reconsider it—M isuse or incorrect use of it—CriminalProcedure Code, ss. 230, 21S (2), 241, 21$.
AVhcre, at a trial beforo the Supremo Court-, tiie question which tbo juryhave to decide is purely one of fact, the provisions of section 24$ (2) of the C'rin inalProcedure Code do not enable the Judge to direct the jury to reconsider theirverdict, unless it is quite clear that the verdict is unreasonable or prrvetse.When two views on the facts are possiblo, and tho view token by the jury isdiflcrcnt from that taken by the Judge, it would bo improper to use section24S (2) in such a manner as to substitute tho Judge’s view of the fact3 for thatof the jury.
Per Curiam : “ When a trial Judge uses section 24S (2), wo think it is verydcsirnblo that he should givo further directions to tho jury and specificallyinform them that they nro still the judges of Tact and perfectly freo to bring thosarr.o verdict after reconsideration if they remained of tho same view, andfurther that tho second verdict will bo deemed, to bo tho truo verdict which•would bo binding on tho Judge as well.”
SIRIMAXE, J.—Gunalilakc Appuhamy v. The Queen
537
Appeal against a conviction at a trial before the Supreme Court.
Colvin R. clc Silva, with Neville de Ahcis and (assigned)V. Sachithananthan, for tbo accused-appellant-.
Ian Wikramanayake, Crown Counsel, for the Crown.
Cur. adv. virtt.
March 17, 1970. Sjrimaxe, J.—^
Tho main contention of Counsel for the appellant in this case was,that there was a misuse or an incorrect use of section 24S (2) of the CriminalProcedure Codo when, purporting to act under that section, the learnedtrial Judge disapproved of the majority verdict of “ not guilty ” returnedby the jury at the conclusion of the trial, and directed them to re-considerthat verdict.
It is necessary to set out very briefi3' the evidence led at the trial :—The deceased had been shot at from closo range when ho was sleepingat night on a cot in the verandah of his house. His widow, Premawalhic,stated in evidence, that some time after midnight she heard a gunshot,and on peeping through the space between the planks, which separatedthe room in which she slept from the verandah, she saw tho appellantstanding near her husband’s cot with something like a pole in his hand.She raised no alarm till next morning ; and it was the contention for thedefence that she became aware of her husband’s death 011I3' next morningwhen she found him injured. It was proved that in her statement to thopolice she had said that her husband had been slabbed and 1 hat she suspectedthe appellant. She had also stated in her deposition in the Magistrate’sCourt that she had informed one Dingiri Panda and Penijynnu who had. turned up next morning that her husband had been stabbed.
Tho next witness was one L'kku Banda, according t o whom, tlsc appellantfor no apparent reason, put him . up late at night,—said thathe wanted to shoot a hare,—and went along with him to borrow a gunfrom one Paul Francis ; and that thereafter the appellant in the prcscncoof this witness shot the deceased. The deceased was killed on the nightof 2nd/3rd November, 19CS. The defenco pointed out that lie made nostatement to the Magistrate who visited the scene onthe-ith before noon,and his statement was made onty after the police questioned him on theafternoon of the 4(h. It was suggested for the defence that this belatedstatement was made to save himself from being named as a suspect intho case. Witness Paul Francis said that the appellant borrowed thogun Pi and returned it fan hour or two later. Ho. did not mentionUIcku Banda, and according to him, lie did not detect 0113' smell of gun ,ponder when the gun was returned. Hut there was evidence from thopolieo' that the gun had been rcecntty fired, and from tho GovernmentAna^-st that an empty- cartridge (F4), alleged to have been found bythe police on a foot-path just 34 feet from the body of tbo deceased, had
533
SIRIMANE, J.—Ounalilake Appuhamy v. The Queen
been fired from the gun (PI). Tho contention of the defence was thatafter the gun was found tho empty cartridge (P2) had been introduced, inorder to build up a case against the appellant. This empty cartridgewas not found on tho 3rd, though, according to the evidence -of theInspector in cross-examination, on his arrival at tho scene on tho 3rdhe had requested the people present (nearly 200 of them) to look for anempty cartridge. According to tho Inspector (P4) was found at about11 o’clock on the 4th November.
That was the main evidence relied on by tho Crown. There was noquestion of law involved as far as the evidence was concerned, and Ithink it would bo clear from tho recital of tho evidence above that thejury might quite reasonably have thought that it would be unsafo to acton that evidenco. It was a pure question of fact which they had todecide. As the learned trial Judge put it, in the last para of hissumming-up :
“ The issue in this case is very simple—either you acquit thoprisoner because the case has not been proved beyond reasonabledoubt, or you convict the accused if you find that the evidencoestablishes that he shot tho deceased, and the verdict you shouldbring in such a case is a verdict of murder. ”
We are unable to agree with the submission made by learned Crown.Counsel that tho evidence was so cogent and compelling that any verdictother than that of guilt would be unreasonable or perverse. Duringtho course of the trial there had been some sharp exchanges between -the Bench and Counsel for the appellant, and tho address for the defencehad apparently not improved matters in any way. In a good part oftho summing-up, at its beginning, the learned trial Judge explains to thejury why “in tho interests of justice” he had to interrupt and correctCounsel during the course of the trial. We do not think it necessary togo into this matter except to observe that it is clear from a reading of the6umming-up as a whole that tho learned trial Judge's view on the factswas that tho appellant was guilty ; and that there must have been auatmosphere of stress and strain when tho jury retired to consider theirverdict. They returned after having deliberated for 32 minutes, andwhat transpired on their return is recorded as follows :
" Clerk of Assize: Mr. Foreman, aro you unanimously agreed upon,your verdict ?
Foreman of the Jury : Yes.
(on being prompted by Juror No. 2) Foreman : No.
Clerk of Assize : How are you divided ?
Foreman : Five to two.
■ Clerk of Assize : By your majority verdict of five to two, do you findthis accused Randunu Mudiyansclagc Gunathillaka Appuhamyguilty of tho offence of murder ?
Foreman : No.
SIRIMAXE, J.—Gunatilake Appuhamy v. The Queen
53D
Court to Foreman of the Jury : Do 3-ou find him guilty or not guilty ?Foreman : Not guilty.
Court to Jury : I don’t approve of (he verdict; nil] you please go backand consider it again ?
Court: What is the section, Mr. Crown Counsel ?
Crown Counsel:248 (2) My Lord.
Court to Jury : Yc3, I will ask you to reconsider 3-our verdict. If37ou have any matters on which 30U arc not clear—if 3-ou want an3'further directions—consider among 3-ourselves and let me know.Foreman of tho Jury (after discussing with the other jurors) : My Lord,wo wish to retire and discuss.
Court : Yes. ”
Tho Jury then retired again, and returned after 27 minutes, and by amajority verdict (5 to 2) found the appellant guilt3' of murder. Afterthe verdict was signed, there is this record :
“ Court : Tell the accused that I agree with the verdict of tho majorityof tho jury that he is guilty of murder.”
It clearly shows that it was the trial Judge’s view on the facts that thoappellant was guilty, and/or that reason the earlier verdict did not meet .with his approval.
Section 248 (2) of the Criminal Procedure Code reads as follows :
" If the Judge does not approve of the verdict returned by the Jury,he may direct them to re-consider their verdict and the verdict givenafter such re-consideration shall bo deemed to bo the true verdict.”
This section is one of a group of sections (216 to 253) in chapter 20 ofthe Code which sets out the procedure for trials before the Supreme Court.One has to bear in mind that “ all trials before the Supremo Court shallbo by jur3' before a Judge or a Commissioner of Assize ” (section 216 (])).Sections 244 md 245 set out the respective functions of tho Judge andthe Jur3', and it is the duty of the. jur3> “ to decide which view of thofacts is true (245 (a)) and to decide all questions which accoiding to laware to be deemed questions of fact ” (245 (c)).
Section 248 undoubtedly gives the Judge very wide powers, but withoutin an3' way suggesting that there should be any limitations or fettersplaced on the powers granted to the Judge b3' tho plain words in thosection, 3‘et, having regard to the context in which the section appears,wo would like to observe, that tho section should be very sparinglyused generally in those cases where there is some ambiguity in t be verdictor an apparent misunderstanding of the summing-up (see Henry Crisp,17 Criminal Appeal Reports, 273) or where the verdict on tho face of itshows that the jury has misapplied the law to tho-facts proved, or againwhere the verdict is incomplete or uncertain. When the verdict is based
‘ 7 Cr. App. Hep. 273.
540
' SLRIXIANE, J.—Qunalilake Appuhamy v. The Queen
on a pure finding of fact a reconsideration by tho jury should bo orderedonly when it is quite clear that it is unreasonable or perverse. Whentwo views on the facts are possible, and tho view taken by tho jury i3different from that taken by tho Judge, it would bo improper to use thesection in such a manner as to substitute the Judge’s view of the factsfor that of tho jury. That would be an encroaclunent on the duties oftho jury set out in section 245, and would render meaningless tho familiardirection given to juries in all cases (and this one was no exception)to remember that they and they alono are the solo judges of fact.
The authorities cited at the argument, though not directly in point>clearly indicate that section 230 (which empowers a Judge to discharge ajury whenever in the opinion of the Judge tho interests of justice sorequire) and section 24S (2) should not be used cither singly or incombination in such a manner as to render ineffective a reasonable findingof fact by the jury merely because the Judge disagrees with thatfinding. In the case of Thomas Perera v. the Queen 1 (29 N.L.R. Page G)tho trial Judge directed the jury to reconsider their verdict but beforesuch reconsidered verdict was delivered, he discharged the jury. Garvin,
J.observed at page 9,
“ Inasmuch as the Commissioner’s order is not open to review and.since his reasons are not before me, I have neither the power, nor amI in a position to say anything judicially in regard to the order madoin this case. But I am free with reference to tho argument addressedto mo to express my own opinion that to exercise in combination thepowers committed by section~24S (2) and section 230 solely for thepurpose of preventing a jury from returning a verdict which is notin accord with the presiding Judge’s view of tho case is not a use towliicji those powers should be put.”
In The Queen v. Handy – (G1 N.L.R. 2G5) it was bold that section 230of the Criminal Procedure Code does -not entitle the presiding Judgeto discharge the jury in a case in which the Judge disagrees with thojury’s view of the facts. In The Queen v. Ekmon 3 (07 N.L.R. 49), afterthe verdict was delivered by the foreman, the presiding Judge askedhim a number of questions and said that it was impossible for him toaccept that p>arb of the verdict according to which none of the accusedwas guilty of murder. He directed the jury to retire ancl reconsidertheir verdict on the charge of murder. It was held inter alia, thattho trial Judge acted wrongly in refusing to take the verdict returnedby the jury after the first summing-up, and in questioning them whentheir verdict was unmistakable. In The Queen v. Arnolis Appuhamy,*(70 N.L.R.-256) it was held that scction’230 docs not entitle the trialJudge to discharge tho jury in a case in which he disagrees with the viewof the facts taken by the jury. H. N. G. Fernando, C.J. stated,
1 {1037) 20 Ar. L. R. 6.
» (1039) Cl N. L. R. 2Co.
(1902) 67 N. L. R. 19.
1 (1967) 70 A". L. R. 256.
SIRIMAXE, J.—Gunalilake Appuhamy v. The Queen
541
“If the Judge uas reluctant to accept the verdict, section
24S (2) entitled him to direct a reconsideration of the verdict and iocharge the jury afresh for that purpose.’’
When a trial Judge uses section 24S (2) we think it is very desirable thatho should give further directions to the jury and spcoificalfy inform themthat they are still the judges of fact and perfectly free to bring the sameverdict after reconsideration if they remained of the same view, andfurther that the second verdict will be deemed to bo tho truo verdictwhich would be binding on tho Judge as well.
In tho present case, the learned Judgo gavo no further directions at all.Having told tho jury that ho disapproved of their verdict of “ not guilty ”lie asked the Crown Counsel, “ What is the section ?” and the CrownCounsel stated, “ Section 24S (2) As Counsel for the appellant urgedthis may have had the effect of making tho jury think that in law theJudgo could direct them to bring in the verdict which was acceptableto him, and that they were bound by that direction. In Thuraimlnam v.The Queen,1 (6S-N.L.R. 347) T. S. Fernando, J. said.
“ A trial Judge should always refrain from using language which,though not intended, may havo the effect of leading tho jury to believe■ that their legal right to determine tbo fa'ffs is not really unfetteredbut is to some degree hedged in to permit the accommodation of theJudge’s view of the facts. “
Those remarks were, of course, made with reference to a summing upbut would apply with even greater force to a situation as the one whicharose in the present case. In this context, the learned Judge’s questionwhether tho jury wanted further directions on matters which were notclear, could havo conveyed the impression, that the Judge wanted toknow from the jury what it was that stood in the way of their returning,what in the Judge’s view was the only correct verdict in the case.
Learned Crown Counsel conceded that alter requesting the jury toreconsider their verdict, the failure of the learned trial Judge to reiteratethat they were still judges of fact, and that their verdict after reconsidera-tion, whatever it was, would be binding on him, was a non-direction whichamounted to a misdirection. He submitted, however, that tho caseshould be sent bac-k for rc-trial. Wo have indicated earlier our estimateof tho evidence led by the Crown, and wc cannot lose sight of the factthat before the misdirection tho jury, in fact, found the appellant notguilty.
Wc do not think that this is an appropriate casein which the appellantshould be placed in jeopardy a second time. For these reasons, woquashed tho conviction and acquitted tho appellant.
i (I960) 6S X. L. 7?. 347.
Accused acquitted.