002-NLR-NLR-V-52-REX-v.-WIJEDASA-PERERA-et-al.pdf
[Court of Criminal Appeal]
1950Present: Dias S.P.J. (President), Gunasekara J.and Swan J.REX v. WI-JEEASA PERERA et al.
Appeals 12-15 of 1950 with Applications 30-33
S.C. 1—M. C., Colombo, 1,035
Court of Criminal Appeal—Maxim that a man intends the natural and probable conse-quences of his acts—Rebuttable presumption—Evidence Ordinance, s. 114
Misdirection—Applicability of proviso to s. 5 (1) °f Court of Criminal AppearOrdinance, No. 23 of 1938—Conspiracy to commit murder—Murder committed-by some of the conspirators—Another conspirator standing guard at a distance—-Equally guilty of murder—Power of judge to put questions—Evidence Ordinance,,s. 165—Duty of counsel to correct judge—Has counsel for appellant right of~reply in Court of Criminal Appeal ?,
The maxim that “ a rational man. should lje presumed to intend the naturaland probable consequences of his acts ” is not a positive rule of law. It is-nothing more than a presumption of fact of the kind referred to in section lidof the Evidence Ordinance. R. u. Steane 1 and 40 M.C. Chilaw 41,865 2followed. Itr is, therefore, the duty of the Judge in charging the jury to make itclear that the presumption is not one of law which they are bound to act upon,but is only a presumption of fact which they are entitled, but not obliged, toact upon.
Held (by majority of Court), that on the facts of this case, when the impugnedpassage of the summing-up was considered as a whole, with the rest of thesumming-up, it was plain that despite the incorrect direction it was made clearto the jury that they were at liberty to«draw or not an inference in regard tomurderous intention after considering the submissions made by the defence,and that therefore there was in effect no misdirection.
Held further (by whole Court), (i) that, even assuming there was a misdirection,this was a proper case to which the proviso to section 5 (1) of the Court ofCriminal Appeal Ordinance ought to be applied. R. v. Heras 3, R. -o. Karthi-gesu 4 and R. v. Athukorale s referred to. R. v. Stirland 6 followed.
that where there was a conspiracy to commit murder and one of theconspirators, in pursuance of the common plan, stood guard on the road by anempty car on a lonely road while his companions took the deceased into thejungle and killed him, that man was equally guilty of the offence of murderalong with his companions.
that where an accused, after he had been examined in chief, cross-examined and re-examined, was put a series of questions by the trial judge,the procedure adopted by the judge was lawful under section 165 of the EvidenceOrdinance, if it caused no prejudice to the accused. R. v. Namasivayam 7 andR. v. Dha/rmasena 8 referred to.
that it is the duty of counsel on both sides to set the judge right if theyfind that he is making a gross error either on the facts or on the law. R. v.Stirland 8 and R. v. Neal 9 referred to.
that, in the Court of Criminal Appeal, counsel for the appellant has noright of reply. It is, however, in the discretion of the Court, in proper cases,to allow him to be heard on any point or points on which the Court may wishto receive further assistance from the appellant after the prosecution has con-cluded its submissions. Counsel for the appellant may also state to the Courtany point or points on which he wishes to address the Court, but the ultimatedecision whether he should be heard or not rests with the Court.
A.PPEALS, with applications for leave to appeal, from certainconvictions in a trial before a Judge and Jury.
Charles Jayawickrama, for the first appellant.'
G. E. Chitty, with K. A. P. Rajakaruna and Tissa Gooneratne, for the.second appellant.
Colvin. R. cle Silva, with K. G. cle Silva, J. TF. Subasinghe and VernonWijetunge, for the third appellant.
M. M. Ktimarakidasmgham, with Mahesa Ratnarn and J. C. Thurai-.ratnanv, for the fourth appellant.
Sir Alan Rose, K.C., Attorney-General, with T. S. Fernando, Crown‘Counsel, and Do-uglas Jansze, Crown Counsel, for the Crown.
Cur. adv. vult.
(1947) 1 K. B. 997.6 (1943) 30 Cr. App. R. 40.
C. C. A. Minutes of January 25i,1950.(House of Lords).
2 (1946) 47 N. L.R.83.7 (1948)49N. L. R. 289.
4 (1946) 47 N. L.R.234.8 (1949)50N. L. R. 505.
8 (1948) 50 N. L.R.at p.257.9 (1949)33Cr. App. R. at p.195.
July 26, 1950. Dias S.P.J.—
Eight persons of whom the 5th to the 8th accused are the appellants,,were charged on indictment with committing the following offences:(1)
criminal conspiracy in or about the month of January, 1949, to rob cashand cheques belonging to the Ceylon Turf Club, in consequence of whichconspiracy the robbery in question was committed on January 31, 1949—sections 113b, 380 and 102 of the Penal Code; (2) criminal conspiracy to*commit minder in the course of the same transaction set out in (1) inconsequence of which conspiracy* the minder of one K. John Silva was-committed on January 30,1949—sections 113b, 296 and 102 of the
Penal Code; (3) a charge of murdering K.. John Silva, on January 30, 1949,.as against the 5th, 7th and 8th accused—section 296 of the Penal Code;and (4) a charge of abetment of the murder of K. John Silva against the1st, 2nd. 3rd, 4th and 6th aeeused—sections 296 and 102 of the PenalCode.
After a trial lasting over five weeks the jury unanimously convictedthe appellants (5th to 8th accused) on the first two charges. They unani-mously acquitted the 1st accused under all the counts of the indictment.The 2nd accused had pleaded guilty to the first count of the indictmentonly. At the close of the case for the prosecution, the learned trialJudge ruled as regards the 3rd and 4th accused, that there was no case to go-before the jury and they were acquitted and discharged.
Under the first count the trial Judge sentenced each of the 2nd, ancLthe 5th to the 8th prisoners to undergo 10 years rigorous imprisonment.Under the second count the appellants were sentenced to death. No-verdicts were returned by the jury against them on the third and fourthcounts, as it was unnecessary to do so.
Certain questions of law were submitted to us in these appeals. Two-of them affect all the four appellants. One refers to the 5th accused •solely and another to the case of the 6th accused. No questions were-raised before us as to the correctness of the conviction of these appellantson the first count in the indictment, namely the conspiracy to- rob the-money of the Ceylon Turf Club. The correctness of that conviction orthe quantum of the sentences imposed under that count are not in dispute.Furthermore, the 5th, 7th and 8th accused in regard to the second count-concede that in law they must be deemed to have “ caused the death ”of K. John Silva. They admit that while they could have been convictedof committing culpable homicide not amounting to murder, they join-issue with the Crown on the question that they are guilty of murdering-John. Silva. Counsel for the 6th accused, while conceding that his clientwas privy to the robbery, submits that the case‘against 6th accused isdistinguishable from the cases of the other appellants, and submits thathe should not have been found guilty even of the lesser offence of culpable-homicide not amounting to murder."
The first and substantial ground of appeal affecting all the appellants^is that the learned trial Judge misdirected the jury on a question of law,and that in consequence of that misdirection the conviction on the?capital charge cannot stand against the appellants.
Not only was the trial a lengthy one, but the summing-up of the learnedJudge extends to over 113 pages of typescript. The alleged misdirectionis said to consist of the following direction which appears at page 104•of the typewritten copy of the summing-up: —
“ Gentlemen, it is sound law that a man should be presumed tointend the natural and inevitable consequences of his acts. It is bythat that you find the intention of a man. A man cannot say * Itis true I did this act; but I did not intend the natural and inevitableconsequences of this act ’. The law "presumes, in the absence of evi-dence, that he did intend the natural and inevitable—consequences of' his acts -«,<
The complaint is that the language of the learned Judge was calculated*to mislead the jury into believing that there was a presumption of lawwhich left them no choice but to hold that in every case a man must bepresumed to intend the natural and inevitable consequences of his•actions, whereas that maxim is no more than a mere presumption of factwhich entitled a jury, but did not compel them if they thought fitnot to draw the inference, to find as a fact that a rational man must beassumed to intend the natural and probable consequences of his acts.
The effect of this well-known maxim of the law was dealt with by SirEitzjames Stephen in Volume 2 of his History of the Criminal Law atpages 110-111 in the following terms: —
“ This account of the nature of ‘ intention ’ explains the commonmaxim which is sometimes stated as if it were a- positive rule of law—that ‘ a man must be held to intend the natural and probable conse-quences of his act ’. I do not think the rule in question is reallyi arule of law, further or otherwise than as it is a rule of common sense.The only possible way of discovering a man’s intention is by lookingat what he actually did, and by considei-ing what must have appearedto him at the time the natural consequences of his conduct ”.
This question arose in a recent case in England in R. v. Stearte1 when“the English Court of Criminal Appeal laid down the law as follows:Where an intent is charged in an indictment, the burden of proving thatintention remains throughout on the prosecution. If the prosecutionproves an act the natural consequences of which would be a certainresult, and no evidence or explanation is given, then, a jury oh a proper■direction may find that the accused is guilty of doing the act with theintent allegted to obtain that result. But if on a totality of the evidence,*there is room for more than one view as to the intent of the accused, the’jury should be directed that it is for he prosecution to prove the intent•charged to the jury’s satisfaction, and, if on a review of the whole evidence"they either think that the intent did not exist, or they are left in doubt«.s to the intent, the accused is entitled to be acquitted. The case ofR. v. Steane 1 was considered in two local cases, one of which is reportedand the other unreported. In the latter case—40 M. G. Chilaw, 41,865 2•-the trial Judge in his summipg-up told the jury: " It is a rule of law, and
(1947) 1 K. B. 997.
2 O. C. A. minutes of January 25, 1950.
•I direct you as such, that a rational man must be presumed- to intend thenatural' and reasonable consequences of his actions ”. He then latermodified the effect of this direction by stating that:“The jury were
entitled to presume that the doer of the act intended those consequencesin the absence of any other explanation He later directed them that" Jt will be your duty,' in considering whether the 1st accused had amurderous intention or not, to have regard to .that presumption that arational man is presumed to intend the consequences of his act, taking it inconjunction with other circumstances The Court of Criminal Appealsaid:*■ • ' •
“ The effect of these directions, in our view, was at the very leastto leave the jury in doubt whether the- presumption was oneof law which they were obliged to act upon, or whether it was., as it. intruth is, a presumption of fact which they were entitled, but not obliged,to act upon, and which might be rebutted by the circumstances ofthe particular case. In a straight-forward case of murder l>y shootingat close range, where the murdered man is in full view of the assailantwho takes aim at -him and fires, there would, ordinarily, be no cir-cumstances to. justify a jury in declining to act on the presumptionthat he intended the natural and probable consequences of his act,n&mely the death of the deceased, and the form of the present directioncould not be held to have caused prejudice to the accused, or any failureof justice; but, in a case such as this, where there was no direct andinsufficient circumstantial evidence that the appellant was firing at a' spot (at a closed door-plank) behind whieh he knew that the deceasedwas standing, we feel that it would be unsafe to assume that the jury,had the evidence on this point been carefully reviewed to' them, andhad they been clearly told that the presumption was one which they were-entitled, but not obliged to act upon, would have found a murderousintention to have been proved- beyond reasonable doubt, and would•have brought in a verdict on a capital charge In that case anewtrial was ordered.
The other case in which R v. Steane was considered is 'R. v. BelloSingho 2 when the Court of Criminal Appeal said:. —
“ Itelying- on the case of R. v. Steane 1 Mr. Perera-argued that on^theevidence taken as a whole, there was room for more than one,view asto the intent of the assailant, and, therefore, the rule of law (stcj thata person'must be taken to intend the natural and probable consequencesof his acts did not apply. Por instance, he said, the assailant may nothave known, where, the blow would alight, or he may have, inflictedthe injury in the course of a struggle. We do*not think that it waspossible for the jury to take the view that' the assailant may not haveImpwn.where the blow would alight, as they had acceptedthe evidencethat there was sufficient. light at the time; nor-do we think, that it -waspossible for them to return a verdict favourable to the accused,. evenif they took the view that the assailant inflicted the injury in the ,courseoP a struggle, as the Exception relating to Private Defence is not ayail-■ able' to a person who enters another's *house with .’the intent" to•eommit robbery”. ■-.■'' -f
34
It seems to us that these authorities make it plain that the maximthat a rational man, must be presumed to intend the natural and probablyconsequences of his acts is not a rule of law giving rise to a presumptionof law which leaves the jury no choice in the matter. It is nothing morethan a presumption of fact of the class enumerated in section 114 of the-Evidence Ordinance, which the jury may or may not draw. In the unre-pojrted Chilaw case we. find one terminal of that principle. In that case therepeated directions of the trial Judge may have had the effect of misleading,the jury, and, therefore, the conviction Was quashed. On the other hand,
v. Bello Singho 1 illustrates the other terminal. It is also clear that inmany cases, even should the trial Judge make a slip when dealing withthis maxim, where a man slays another under circumstances whichleave no room for doubt as to what his intentions are, such a misdireetioniwill not be regarded as being serious by the Court of Criminal Appeal.
It is to be observed that the passage to- which exception is taken inthis case 'occurs at page 104 of a lengthy summing-up- consisting of 113^pages. As the Attorney-General pointed out, we should examine the-summing-up as a whole to see whether the jury were in fact misled or-fettered in the discharge of their duties by these four sentences.
At pages 13—16 the learned Judge defined to the jury what the ofEence-of murder under our law is. At pages 16 and 17 he told them whafe“ a murderous intention ” was, and he ended up by saying “ Of course,-I will tell you later, how in these cases we try to find out whether a manhad a murderous intention or not ”. At page 20 he told the jury that-the burden was on the prosecution to prove each of the charges in the.indictment beyond all reasonable doubt, the meaning of which he care-fully explained to them. At page 21 he told them that they were the sole-judges of the facts, and that the responsibility for finding the facts wastheir duty and not that of the Judge. At page 26 he adequately dealtwith the presumption of innocence. At page 94 the learned Judgesreverted to the question of murderous intention in the following words:—–
“ Now, how do you find whether a man had a murderous intention ?"You do not get direct evidence ….1 mean a man does not come
up to the victim and say ’ Here—now I am giving you this blow and?cutting you in this way, because I have an intention to kill you,’ …
So that you must find out this murderous intention by looking atvarious circumstances connected with the transaction, and see – whethei-from those circumstances you can infer an intention; because you cannotexpect witnesses to come here and say ‘ We read the intention of the-5th, 6th, 7th and 8t}i accused at that time, and this was their intentionYou have got to find it out from the circumstances
The learned Judge then proceeded to enumerate the circumstances-relied upon, by the prosecution to prove murderous intention and then-said:-—-
“ Ask yourselves ‘ On looking at all these can we or can we not saythat the man had an ir.tention to cause death, or at least to inflickan injury which is sufficient in the ordinary course of nature to cause
* (1947) 48 N. L. It. at p. 545.c
death. ?* … Well, if all those facts are proved, I do not know
whether you will have much difficulty in reaching a decision on thequestion of murderous intention
Then at page 96 the learned Judge said : —
“ Now, something that will help you … to reach a decisionwhether the assailants had a murderous intention or not, somethingthat will help you to some extent—is the question ‘ How long afterthis happened, (i.e., after the deceased man was tied up to a tree in thejungle) did the deceased man die ?’—and that will help you to someextent I think, if you also remember the medical evidence and acceptthat medical evidence that this deceased man had no such disease asmade his case different from that of a normal man of 56
Then comes the passage in the summing-up which is objected to at page
104. Then there is the passag which immediately follows: —
“ Well—consider all that, and ask yourselves, apart from the (gas—)mask, whether the assailants did not inflict on this man an injurysufficient in the ordinary course of nature to cause death ? Of course,the question of intention becomes still easier, if you accept the evidencewith regard to the use of the gas mask (i.e., that the deceased was killedby suffocation by having a gas mask placed over his head with thesupply of air cut off, as against the other view that the man was tiedto a tree in a lonely jungle and died of asphyxia and/or shook.) Thedefence, gentlemen, draws attention to certain facts to show that theassailants had no intention to commit murder, had no intention tocommit an injury sufficient in the ordinary course of nature to causedeath ”.
We agree that the passage which is objected to at page 104 of the-summing-up contains incorrect statements of the law in that it states as-a presumption of late what is only a presumption of fact, and that it statesses an irrebuttable presumption what is in truth no more than a rebuttable-presumption of the kind referred to in section 114 of the EvidenceOrdinance.
This direction is of particular importance in ascertaining the intentionof the assailants, if the jury rejected the evidence with regard to themurder of the deceased man by the use of the gas mask to suffocate him,^nd came to the conclusion that he died of asphyxia and/or shock as a-result of his being tied up in the jungle. In. such a case it seems to us to be'vitally necessary that the trial Judge should have directed the jury thatthe maxifn that rational man may be presumed to intend the naturaland probable consequences of his actions is only (t presumption of factwhich they may or may not draw. We think that the language used bythe learned Judge may have led the jury to believe that what he was laying-down was a presumption of law which they were bound to follow,, and inregard to which they could not exercise their independent judgment.The Attorney-General concedes that this direction was erroneous, but he•contends that what is stated in page 104 of the transcript is really no mis-direction when the summing-up is read and considered as a whole. TheAttorney-General concedes that had the direction at page 104 stood alone
it may be open to objection, but he submits that when it is taken in. con-junction with the rest of the summing-up it would amount to .a mis-carriage of justice to quash this conviction on the ground of misdirection.
He submits that the Court of Criminal Appeal, even if it considered thatthere was a misdirection, would interfere only if there was a miscarriageof justice. He .admits that if there was misdirection in law by the learnedtrial Judge it. was incumbent -upon him to satisfy this Court that therewas no. miscarriage of justice. In our opinion the impugned passageamounts to a ^misdirection and not to a (mere error or slip as contendedby the Attorney- General. We are of opinion that the principle laid downin R. ,u. Stearic 1 is in. point, and we are unable to draw a. distinctionbetween, the .language, used by the learned trial Judge and the languageused by the learned Judge in charging , the-jury in the unreported Ohilawcase. We are .therefore of opinion that there, has been “a wrong decisionof a question oJf'law ” within the meaning of section 5 (1) of the CriminalAppeal Ordinance, No. 23 of 1938. We would like to point out, however',,that' if it' is: a fact that the deceased man was suffocated by having agas mask placed over his head and the supply of air was cut offby squeezing ' the tube, the ' misdirection in question would be innocuous,because in-such, a case there- could- be no question as to whether the personor persons who suffocated the deceased man had or had not a murderousintention, i.e., an intention to kill him. ■ The-importance of the misdirec-tior. is in regard to the other definition of murder which -applies-.that–isto say, if the jury discarded the submission that the deceased waskilled by suffocation, whether the appellants caused the death of thedeceased by doing an act with the intention of causing him bodily injury,and -the- bodily’ injury intended to be inflicted was sufficient ‘in' ‘theordinary course of nature to cause death.-■
. The Attorney-General however argued that .when the summing-upis read-as a whole and the impugned passage is-read alongside with, theother passages which we have indicated -above, the effect of the mis-direction is, nullified. We are agreed that what the learned Judgestated at pages 94 to 103. and the last paragraph of page 104 of thesumming-up do not assist us in solving the problem whether the im-pugned passage can be said not to be a misdirection. There are, however,passages a.t. .p.age 105 of the summing-up which .in the opinion of themajority of -us. have the effect of negativing the misdirection on page 104-The learned Judge stated —r .„-., .
; •" .■:* .The ■ defence,; gentlejnjSA,..- draws attention to. certain facts to. show..-.-that the assailants had-no’.intention to commit murder, had no intention; to commit an; injury – sufficient in the. ordinary course of nature to..cause .-.death. They. say ‘ Look at the evidence given by Hupananda- and. Wijedasa ; all that was said .at these conferences before the robberywas that the driver was going to be tied to a tree, not that the. driver. was going- to be killed' ’. "Well, you must consider .this carefuly. Does._ the fact that people when they are considering a robbery and dis-cussing the plan .for, carrying out the robbery and then discussing asto: how to. get rid of thi^ inconvenient .driven,.and;, get hold of a::c’on-.-venient police inspector, when they are discussing that -plan and. they
say as far as the driver is concerned ‘ We will take. kina, to Puttalamand tie him up to a tree '—does it exclude any inference that theywant to kill the driver-..
It has been submitted that the efEept of the summing-up on the questionof murderous intention was to direct the jury that they could only drawan inference from the circumstances, .but that .if they found the existence,of- one of the circumstances relied upon , by the .prosecution, namely thatdeath was the natural and inevitable consequence of the tying up, thatthe law permitted them to draw no other inference except an inferenceof murderous intention. Therefore, it is submitted that the outstandingquestion is whether the passage quoted from page 105 negatives theimpugned passage at page 104 ancl leaves Hie jury free to draw an in-ference one way or another. The majority of-us are of: the view thatwhat the learned Judge stated at page T05’tvas to make it clear to- thejury that, despite what was earlier stated at page 104; : thc jury were atliberty to draw Or not to draw an inference in regard to murderousintention after considering the submissions made by the .defence. Themajority of u.s are, therefore, of opinion that when the summing-up is readas a whole there is in effect no misdirection. –
Nevertheless, we are unanimously of ■ opinion that if the impugnedpassage at page 104 is in truth a misdirection, then this is a proper casefor the application of the -proviso to section 5 (1) of the’Court of CriminalAppeal Ordinance which reads: —''
“ Provided that the court may, • nptwithstanding that they are of. opinion- that, the point raised in the appeal might be decided in favourof the appellant, dismiss the appeal if they consider that no substantialmiscarriage of justice has actually occurred ”.
The principles upon which this, proviso should be applied have tjeensettled by a series of decisions both locally and in England, and may bestated as follows-: – The proviso to section 5. (1) applies if the Court ofCriminal Appeal is satisfied that no . reasonable. jury properly directedwould or could have given any other verdict than, that .which was in factgiven, and no substantial injustice has been dpne—R. v. ,Heras. Homy 1and R. v. Karthigesu 2. If there has been misdirection in a charge,, not.otherwise open to criticism, which may have turned the scales againstthe. appellant, and the Court of Criminal Appeal cannot say that with aproper direction the jury may have reached the same conclusion, theproviso to section 5 (1) will not avail the Crown—R. v. AtuJcoraXe 3. Asto whether a new trial should or should not be ordered will depend onwhether the Court of Criminal' Appeal is- of opinion that there wasevidence before the jury upon which- the accused*' might reasonably havebeen convicted but for the irregularity upon which the appeal wasallowed—Section 5(2),’ proviso.' :We would draw' attention to the
decision of the Souse of Eords* in R. vK :Stirland * where -Lord Simon,'Lord Chancellor, held: —1- = —
,The provision that the Court of Criminal Appeal may dismiss an
appeal if they consider that no- substantia^ miscarriage of. justice, has
1 {1946) 47 N. L. S. 83.a (1946) 47 N. i. R. 234.
3 (1948) SO N. R. R. at p. 25?.* (1943) 30 Cr. App. R. 40.
actually occurred iu convicting the accused assumes a situation wherea reasonable jury after being properly directed would on the evidence,properly admissible, without doubt have convicted
Therefore, the question which we have to ask ourselves in the presentcase is whether, despite the alleged misdirection, a reasonable jury afterbeing properly directed would on the evidence without doubt haveconvicted these appellants ? We are of opinion that that questionshould be answered in the affirmative.
. . . '
In dealing with this question it will be necessary to recapitulatebriefly the facts of this case:
The Ceylon Turf Club holds a race fneeting on certain Saturdays of themonth. At the close of the day of such race meets there would beavailable in the hands o,f the officials of the Club a considerable sum ofmoney in cash and cheques which they send to their bank on the followingMonday. The procedure observed was for a motor cai* to be hired fromthe Armstrong’s Garage. Into this car the money in boxes or cases wasloaded and placed in charge of a servant of the Club who had a policeinspector as an escort. Another car or van would be detailed to followthe car containing the money as a greater precaution. Anybody whodesired to ascertain the routine followed by the Turf Club in sending thisinoney to the bank could easily obtain the requisite information.
The case for the prosecution is that the eight accused and othersformed a conspiracy to waylay and rob the money of the Turf Club onMonday, January 31, 1949, when it was being conveyed to the bank. Itwas a prize worth winning for the amount involved in this case was aboutthree lakhs in cash. This money the robbers succeeded in obtaining.
The evidence proves that in pursuance of this conspiracy they securedthe services of the accomplice Rupananda de Silva. The conspiratorsmet on the 22nd and 24th of January, and at the behest of the Tthaccused, Rupananda on January 25 went to Armstrong’s Garage andbooked a large car, No. Z 6033, of which the driver was the deceased,
K.John Silva. The car was booked for Sunday, January 30, by Rupa-nanda in a false name for a trip to Puttalam which is about 80 milesfrom Colombo.
The race meet took place on Saturday, January 29, and on the sameday the 7th accused hired the small car, which was owned and driven bythe 2nd accused—car No. CE 7577, also for a trip to Puttalam on thefollowing day.
On Sunday, January 30, 1949, at about 2 p.m., Rupananda went tothe Armstrong’s Garage, and obtained the ear Z 6033. The car was drivenby the deceased man. . The 6th accused, who is an esc-policeman, andto whom was assigned the role of impersonating the Inspector of Policeat the hold-up on the following day, sat in the back seat with Rupananda.At the Victoria Bridge exit from Colombo, the 5th accused, who waswaiting there by arrangement, entered the ear and sat besides thedeceased. The case for the prosecution is that the 5th accused, whois an esc-army driver, was needed to drive this car after the deceasedman had been murdered. To him it is alleged was assigned the role ofdriving the car 'oh the following day.
Tn the meantime, motor oar No. CE 7577 driven by the 2nd. accused,with the 7th and 8th accused had independently started off for Puttalam.At Ja-ela the big car Z 6033 overtook the small car.
Motor car Z 6033 reached Puttalam at about 5 p.m. well ahead of thegfnn.ll car. They halted near the Victory Hotel at Puttalam in order to1H11 time. They had a meal of fish and eggs and a drink of arrack, andthe deceased man was invited to partake of it. Thereafter Rupanandaand the 6th accused left the hotel to contact the 7th and 8th accused.The prosecution submits that aflt that meeting the final details of theplan regarding the elimination of the deceased were decided upon. Theplan was that the .small ear with the 7th and 8th accused was to proceedahead along the Puttalam-Anuradhapura Road:—a desolate and lonelyroad with dense jungle on both sides—and await the other car at culvertNo. 13/4. In order to synchronise the times, Rupananda was handedthe wrist watch P7. Rupananda, the 5th and 6th accused in. car Z 6033were to proceed along the Puttalam-Anuradhapura Road, and the 5thaccused was told to keep complaining about a stomach ache, whichwould serve as an excuse for stopping car Z 6033 at culvert No. 13/4.
After receiving their instructions Rupananda and the 6th accusedreturned to the Victory Hotel, and car Z 6033 started off according toplan, the 5th accused complaining that he had a stomach ache.
The 2nd accused stated in evidence that the 7th and 8th accusedon the pretext of meeting a timber contractor asked him to drive thesmall car along th'e Puttalam-Anuradhapura road, and at the culvertthey alighted and ordered him to turn the car. Second accused says thatas he could not turn the car at that spot, he proceeded some distancewhen one of the sparking plugs of his car began to give trouble. He,therefore, pleaded ignorance of what took place thereafter near theculvert. It is immaterial to this, appeal whether this story is true orfalse.
It is clear that the 7th and 8th accused having alighted from thesmall car were hiding in the jungle disguised. The 8th accused waswearing a service gag mask P8 and had a rope with him. The 7thaccused had covered part of his face with a black handkerchief.
Car Z 6033 came along, and at the culvert the urgencies caused by thebogus stomach ache made it essential that the 5th accused should alightto enable him to ease himself in the jungle. The other occupants of thecar including the deceased man also alighted to stretch their limbs.It is to be noted that the deceased man, who was 56 years old, had beendriving over one hundred miles that day.
– J
The case for the prosecution is that for the success of the conspiracyto rob the Turf Club of its money on the following day, it was absolutelyessential for the robbers (a) to substitute another of Armstrong’s carsfor the car which would go to the Club to take the money, (b) to sub-stitute a bogus police inspector for the real police officer who was to bethe escort, and (c) to substitute with their own man (the 5th accused) anew driver for the car which was to take rfhe money, in place of thedeceased John Silva. As regards the substitution of the driver, thesubmission for the Crown is that it was a fundamental point that John
Silva had to die. ' The Crown submits that this conspiracy had beenplanned with the greatest care. The object of the robbers was to avoid,detection. The whole plan would come to naught unless John Silvawas completely eliminated. There was no point in abducting himtemporarily, and then letting him loose to appear as the chief witnessagainst the conspirators at their trial—“ Dead men tell no tales ”.
The burden of proof was on the prosecution to establish beyondreasonable doubt that the deceased man was murdered. There is noburden cast on :the; prosecution to go feuether and to establish the mannerin which the deceased was killed, provided the prosecution was able toprove that the man was in fact murdered. We are mindful of the wordsof Scrutton J. in charging the jury'1'in the case of jR . v. George JosephSmith 1:—.
“ I direct you … -. that it .is not necessary that you should
be satisfied exactly how- the death was caused, if you are satisfiedthat it was caused by a designed act of the prisoner, I direct you thatin my own words and I also direct you in the words of a judgmentwhich I regret has not been more widely circulated: in England——thejudgment of Mr. Justice Windeyer of the Australian Courts:—‘ AHthat the law requires is that the offence charged must be proved.In proving murder the exact mode of killing becomes immaterial if thereis sufficient evidence to satisfy a jury that there was a killing by theprisoner under- conditions which make it murder ’
No exception wks taken in the English Court of Criminal Appeal to that-summing-up Which we think -lays down the correct principle of law.We agree with learned counsel for the 6th accused that there, however,may be cases in Which in proving the murderous intention of the prisoner1,the mode of killing may become relevant and necessary. :;
The case for the prosecution was that the deceased man did not die anatural death—ifor he had no disease; that he did not die of suicide;because it is inconceivable that a Colombo motor car driver would go h100 miles into .the wilderness and commit suicide by tying ■ himself to atree; or that he died by some accidental means. The evidence clearlynegatives those three causes of deathW Therefore; what remains mustnecessarily be a death due to homicidal violence which; of. course, may bemurder or culpable homicide not amounting to murder, or even somethingless. The case for, the prosecution was that it was a fundamental neces-sity for the successful carrying put-, of the conspiracy that John Silyashould not live to testify. By the time, the body was discovered;-namelyon the afternoon .of .February 3, 1949; it was in an advanced state jof■decomposition.:. ..’>
The case for the. prosecution was that the deceased man having beenlured into the jungle, was tied to a-tree and then suffocated by means ofthe, gas. mask PS ’which was placed over his head, and by the squeezingof the tube which admitted air for breathing. At the scene were the5th, 7th and 8th accused and the accomplice Kupananda, while the 6thaccused, who was privy to the conspiracy, waited on the roadside .by thebig' car, while the 2nd accused (if this story is true) was cleaning a- defective,sparking plug further down £he, road.. .
,1 (1.915) Notable British Trials, pp. 271—272.
[The Court then considered the evidence in detail, and pointed outthat not only did the scientific and other evidence corroborate the accopa.'plice Rupananda de Silva, but also that the uncontradicted medicalevidence conclusively proved that the deceased man had died at or aboutthe time he was tied • to the tree in the forest,- and not, as contendedby, the defence, several hours after the appellants had left the scene..The Court then continued: —3; ■ .■• . ■
Therefore, taking all the facts and circumstances, as ®. whole, we areqf opinion that despite the alleged misdirection a reasonable jury having•all these facts and circumstances before them without doubt would haveeonvicted these appellants of committing the murder of the deceasedman by suffocating him with a; gas mask at or about 6 or 7 p.m. onJanuary 80, 1949. We therefore think the convictions under Count <3must be affirmed._
We are unable to distinguish the case of the 6th accused from ’thatagainst the other three appellants. It is true that he- was physicallynot present at the time the deceased man was murdered but. we are nfopinion that having regard to all the facts and circumstances he was anabettor of this murder, and as such equally liable with his co-conspirator&LHis learned counsel conceded that the 6th accused was privy to thfetying up of the deceased in the jungle. It is clear that not only was- itthe intention of the robbers to tie up the deceased man in the jungle bj^tit was also their intention to kill him there, and, therefore, theaccused is equally guilty with his co-conspirators in everything theydid in order to give effect to their common plan. We agree with thesubmissions of the Attorney-General with regard to, the 6th accused;He knew that the deceased had to die. He gave no evidence at the trial.He is an ex police officer- and with, .true .police .caution he did not like tqbe seen carrying the incriminating suit case in which the uniform whichhe was to use the following day was packed. We do not think thefact that the 6th accused was on the road by the car while the othersmurdered the deceased makes any difference to his case. Somebodyhad to be by the big car. This is a main road and any passer-by whqsaw a large ear standing unattended on a lonely forest road, might betempted to stop and make inquiries which would be extremely incon-venient for those, who were murdering the deceased in the jungle. There-fore, the 6th accused or some other person had to be by the ear. TheAttorney-General argues that if his companions told him that theyhad merely tied the deceased to a tree, the 6th accused as an ex policeofficer would never have kept quiet, for his own safety, because if JohnSilva remained alive he would indubitably have given evidence againstthe 6th accused whom he saw in circumstances in which he would havebeen able to identify him.
It was further contended that with regard to the 2nd definition ofmurder, it would be applicable to this case in the event of the , juryrejecting the case for the prosecution that the man had been deliberatelysuffocated by means of the gas mask. The words of this 2nd definitionrequire that death should be caused by the * 'doing of an act with .theintention to cause bodily injury and the injury intended to be caused issufficient in the ordinary course of nature to cause death’ ’. The learnedtrial Judge did not use these< words. It was argued for the appellantsthat the jury might understand this to mean that, if the assailant inflictsa-* injury by an intentional act, and the injury inflicted is sufficientin the ordinary course of nature to cause death, then, there is a murderousintention irrespective of whether the injury intended to be inflictedwould be sufficient or not. It was submitted that if the jury held thatit was an intentional act of the accused which caused the injury (asphyxiaand/or shock) they may not have gone on to consider the further questionwhether asphyxia and/or shock was intended, or whatever bodily injurywas intended would be sufficient in the ordinary course of nature tocause death. For the reasons we have given we do not think it ishecessary to consider this question any further. We would, however,point out that in view of the manner in which count 2 of the indictmentin this ease has been framed, it appears to be doubtful whether count 2brought into operation this 2nd definition of murder at all which, wouldmore appropriately be caught up within the ambit of count 3 and 4.We however do not decide this point. We are of opinion that the jurywithout any doubt on these facts and circumstances would have held thatit was the 1st definition of rnmrder which applied, namely causing deathl»y doing an act with the intention of causing death.
Mr. Jayawickrema who appeared for the 5th accused submitted thatthe learned trial Judge after his client had given evidence subjectedhim to a series of questions after what counsel characterised “ as theineffective cross-examination of the 5th accused by the Crown ”. Hesubmits that this act of the learned trial Judge caused his client pre-judice. We are unable to agree with this contention. Section 165 ofthe Evidence Ordinance clearly entitles a trial judge to put such questions.Obviously the trial judge must not put questions so as to afford groundsfor the legitimate criticism that the accused had not had the benefit ofa fair trial—22. v. Ncumasivayam. 1. Furthermore, it was held in 22. v.Dharmasena 2 that unfair or hostile cross-examination of the accused bythe trial judge might amount to a miscarriage of justice. Neither ofthese eases has any application to the facts of the present case. Atrial judge must be allowed the utmost freedom to ask questions, providedit is done fairly ; and we have neither the power nor the inclination toignore either the letter or the spirit of section 165 of the EvidenceOrdinance.
It was also argued that the verdict of the jury in this case Was un-reasonable. For the reasons we have given at length we find itj impossible to accede to that argument.
During the argument the question was raised as to whether it wasproper for learned counsel to stand by without interrupting the trialjudge if they found that he was making a gross error either of fact or of. law. We do not wish to say anything more on this question than topoint to the observations of Lord Simon, Lord Chancellor, in 22. v.Stirland 3 where he said: “ The failure of counsel to object may have abearing on the question cwhether an accused 'was really prejudiced.It is not a proper use of counsel’s discretion to raise no objection at the
i (1948) 49 It. L. S. 289.2 (1949) 50 It. L. R. 505.
2 (1943) 30 Cr. App. R. 40.
time in order .to* preserve a ground of objection for a possible appealNo doubt that dictum was pronounced in regard to the putting. of animproper question to a winess, but it seems to us that that dictum, issufficiently wide to include a misdirection on a question of law or factby the learned trial Judge in his summing-up—see R. v. Neal 1. Wemust not be taken to imply any censure on learned counsel for the defencewho, if we may say so, conducted the defence of their clients withconspicuous ability. It is obvious that the passage in the summing-upwhich is now objected to passed unnoticed at the time by counsel onboth sides, and it is to be observed that even in the petitions of appealno specific reference has been made to this misdirection.
Finally, the question was raised as to whether in the Court of CriminalAppeal the appellants have a right of reply ? We decided this pointin a short judgment after the argument. We repeat that the appellants,have no right to be heard in reply in an appeal before .the Court ofCriminal Appeal, but that it is in the discretion of the Court in propercases to allow the appellants to be heard on any point or points on whichthe Court may wish to receive further assistance from the appellantsafter the Crown has concluded its submission. In such cases we thinkthe appellants should state to the Court on what point or points theywish to address the Court, but the ultimate decision whether the appellantsshould be heard or not must rest with the Court. Learned; counsel forthe 6.th accused referred to section 10 (1) of the Court of Criminal AppealOrdinance where it is provided “ For the purpose of this Ordinance theCourt of Criminal Appeal may, if they think it is necessary or expedientin the interests of justice ”, do certain things, “ and exercise in relationto the proceedings of the Court any othex* powers which may for the timebeing be exercised by the Supreme Court on appeals in civil matters* ”.Learned counsel did not seek to argue that this provision brought intooperation the right of reply given to the appellant in civil appeals undersection 769 of the Civil Procedure Code. We are of opinion that theprovisions ctf section 769 of the Civil Procedure Code relating to theright of reply cannot be regarded as " powers of the Supreme Court ”which are referred to in section 10 (1).
The applications and appeals are dismissed.
Applications and appeals dismissed.