Sudu Banda v. The Attorney-General
COURT OF APPEALJAYASURIYA, J„
C.A. NO. 223/93H.C. KANDY NO. 832/93SEPTEMBER 09, 1998
Criminal Law – Non-production of weapon preparation – Attempt – Tests to identifyattempt – Equivocality test and proximity test – Evidence ordinawe S. 114 C, 165.
Where the allegation was that intended victim had by sprawling on theground availed being hit by a gunshot fired by the accused, the offence is attemptedmurder.
The proper tests to apply to determine whether the act is an attempt are theequivocality test and the proximity test. Where an accused has gone far enoughto make his action unequivocal then the equivocality test applies.
Intention is the essence of the crime. A distinction must be drawn betweenpreparation and attempt. The act must be sufficiently proximate to the actualcommission of the act.
Where the accused by his utterance that he was waiting for the Police, and firedthe gun aiming at his victim, who escaped by taking defensive action, both theProximity Rule and the Equivocality test are satisfied.
Although the gun was listed as a production but not produced, the non-productionwas not fatal to the prosecution.
Cases referred to:
1. Hichin v. Ahquirt Brothers (1943) 2 All ER 722.
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Locus v. William and Sons (1892) 2 QB 113; (1872) 66 Law Times 706.
Rex v. Francis 1874 Law Reports CCR 128, 132.
Chandradasa v. Eldrick de Silva 70 NLR 169, 174.
King v. Usman 49 NLR 143.
City Carriers Ltd. v. The Attorney-General 74 NLR 217.
Davey v. Lee (1967) 2 Ail ER 423.
Rex v. Miskell (1954) 1 WLR 438; (1953) 37 Cr. App. Rep. 214.
Rex v. Cope (1921) 16 Cr. App. Rep. 77.
Eagleton (1855) Dears 515.
Rex v. Robinson (1915) 11 Cr. App. Rep. 124; (1915) 2 KB 342 at 441.
Rex v. Woods (1930) 22 Cr. App. Rep. 41, 44.
Kensington v. Edirisinghe 3 NLR 326.
AG v. Deonis Weerakoon Reports 13.
Rex v. Whybrow (1951) 35 Cr. App. Rep. 141.
APPEAL from judgment of the High Court of Kandy.
Dr. Ranjith Fernando with Miss A. Jayaratne, Miss S. Godagama for the accused-appellant.
Vijitha Malalgoda, SSC for the AG.
Cur. adv. vult.
Septembr 09, 1998.
We have heard learned counsel appearing for the accused-appellant.Learned counsel referred to the fact that in this case insufficientevidence had been led on behalf of the prosecution in regard to theadduction of evidence under section 241 of the Criminal ProcedureCode against the accused on the fact that the accused was abscondingat the trial. The Police Officer, Inspector of Police, LakshmanWeerasekera, Officer-in-Charge of the Walapane Police Station hasgiven evidence to the effect that the accused was detained at thePallekelle Rehabilitation Centre and that he had escaped from lawfulcustody whilst he was detained at the centre. Thereafter, he hasstated, that he had directed his junior officers to look for the accusedin the village and all searches for the accused in the village had been
Sudu Banda v. The Attorney-General (Jayasuriya, J.)
fruitless and he spoke also to what the Grama Sevaka and the villagershave stated in this regard. This evidence was unimpugned anduncontradicted at the trial. Thus, there is clear evidence that theaccused was detained at the Pallekelle Rehabilitation Centre and thathe had wrongfully and unlawfully escaped from lawful custody.That fact, taken in conjunction with the evidence led through the officer-in-charge of the Police station, gives rise to the presumption ofcontinuity which is a presumption recognized in section 114C of theEvidence Ordinance and therefore the learned trial judge having regardto the presumptive evidence and the oral evidence before him, wasentitled to hold that the accused was absconding, at the inquiry heldby him prior to the commencement of the trial. His finding is justifiedand valid in law.
Next, the learned counsel complained that the firearm alleged tohave been used was listed as a production in the indictment but thatit was not produced at the trial. Two witnesses, Upendra Gunaratneand Kularatne Banda, have given evidence to the effect that theaccused had a gun in his hand and when he saw the Police officers.
the accused had uttered the remark :
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be different to the law in Great Britain. His views on this matter havebeen criticized by his assistant. However, in proviso 2 to section 60of the Evidence Ordinance he has made provision for the adductionof real evidence subject to a condition. Section 60 proviso 2 sets outthus: “Provided also that if oral evidence refers to the existence orcondition of any material thing other than a document, the court may,if it thinks fit, require the production of such material thing for itsinspection. “Likewise, the court could act in this respect again in theexercise of its power enshrined in section 165 of the EvidenceOrdinance." Thus, there is a definite change in the law as far as theEvidence Ordinance is concerned when one compares it with theEnglish law. Even in England there are a series of decisions whichhave taken the view that the non-production of the material objectis not necessarily fatal to a conviction. Vide the following cursus curiae- Hichin v. Ahquirt Brothers‘1); Lucus v. William and Sonsf2); Rex v.Francis at 132 for the observations of Lord Coleridge. It appearsthat Stephen has followed this line of reasoning manifested in theseEnglish cases that I have adverted to. In the circumstances, thecontention that as the gun was listed as a production in the indictment,its non-productign at the trial is fatal to the conviction, is an untenableproposition certainly as far as the law of Sri Lanka is concerned. Itis to be stressed that both witnesses have given oral evidence inregard to the nature of the weapon which was in the hands of theaccused-appellant and with which the accused-appellant had fired atthe police constables who were attempting to arrest him.
Both on the issue of whether the accused was absconding andon the issue whether the object that was used a firearm, more thanprima facie evidence has been placed before the trial court by theoral testimony of the witnesses for the prosecution and there has beena wholesale failure to contradict and impugn such cogent andconvincing evidence, on the part of the accused. This is a specialfeature in the prosecution and it is "a matter" which any trial judgeor a Court of Appeal Judge ought to take into consideration and failureto do so would amount to a non-direction which amounts to amisdirection. Justice H. N. G Fernando was eloquent in expressing
CASudu Banda v. The Attorney-General (Jayasuriya, J.)379
the view that such a feature in a case is "a matter" falling within thedefinition of the word 'proved' and that it is obligatory on any Judgeto take this fact into consideration in determining whether a particularissue has been proved and established before the court. Vide thesalient observations of Justice H. N. G Fernando in Chandradasa v.Eldrick de Silva,w at 174 in the circumstances, we hold that the firsttwo contentions advanced by learned counsel are devoid of merit andare unsustainable in law.
Thirdly, he argued that the ingredient of an attempt to commitmurder, which is relevant to constitute the offence has not beendischarged by the prosecution beyond all reasonable doubt. Inconsidering this submission this court has to take into account thepositions at which the prosecution witness and the accused werestationed shortly before this firearm was used by the accused-appellantand when he took aim at the Police officers and fired the gun whichwas in his hand. The gun shot would have definitely alighted on theprosecution witness, had he not taken defensive action in sprawlingon the ground soon after the gun was fired. It is manifest that thedistance was only six yards which separated the two adversarialparties. We hold that these acts clearly amounted to an attempt tocommit murder in terms of the PROXIMITY RULE and the EQUIVO-CALITY TEST on which learned counsel for the accused-appellanthas completely failed to advance any submissions before this court.We hold that his contention is wholly untenable. The Proximity Rulewas applied by the court in King v. Usmarf5). The accused wasarrested when attempting to open a part of a window. He was arrestedwhen he had not succeeded in opening it at that stage. It wascontended that the reasonable inference to be drawn from theaccused's action is that he intended to enter the house. The courtemphasized, although it is a reasonable inference, it is not the onllyreasonable inference that can be drawn. The complainant actedprecipitately in arresting the accused at that stage without waiting tillthe accused proceeded to an extent which would have made his actionUNEQUIVOCAL. As matters stood at the time of the accused's arrest,his action could not be said to be unequivocal and that it pointed
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clearly and necessarily to the conclusion that the accused wasattempting to enter the house. Thus, the court applying the Equivo-cality Test has held the charge of attempted house-breaking failedin these circumstances. In City Carriers Ltd. v. The Attorney-Generalboth Justice H. N. G Fernando and Justice de Krester applying theratio decidendi in the decision in Davy v LeeP and the EquivocalityTest (propounded by Turner in Modern Approach to Criminal Lawat page 278 and at 185, pages 273-291) proceeded to determinewhether the acts proved in the instant case amounted to an attemptto commit an offence.
The proximity rule was applied in Rex v. MiskelP1 and in thedecision in Rex v. Cope*91. In Rex v. Miskell (supra) Justice Hilburyreferred to the controversy and observed : "Not all acts which aresteps towards the commission of the crime can be regarded asattempts to commit the crime; but just where the distinction is to bedrawn between the preliminary acts of preparation and acts whichare nearly enough related to the crime to amount to attempt to commitis often a difficult and a nice question. This case indeed affords anexample of the difficulty. . .The question is whether these acts ofthe appellant were an attempt to procure the commission of thatoffence. Applying the principle as stated in Eagletod'0' (which principlewas approved in Rex v. Robinsod"' and in Rex v. Wood'2' at 44the question was raised : "was there on these facts an act sufficientlyproximate to procuring the boy to commit the offence, to amount toan attempt to procure?" Vide – the decision in Kensington v.Edirisinghd131 the decision in AG v. Deonisf,4).
In Rex v. Whybrovy°S| the principle was clearly laid down that inthe law relating to attempt, intention is the essence of the crime.Hence, in a charge of attempted murder, the essenrce of the offenceis the intent to murder but in a charge of murder malice afore-thoughtwould be sufficient to support the count of murder. But if the chargeis one of attempted murder, intent becomes the principal ingredientof the offence. Thus, "if A attacks B intending to do grievous bodilyharm and death results, that is murder, but if A attacks B and only
Sudu Banda v. The Attorney-General (Jayasuriya, J.)
intends to do grievous bodily injury and death does not result, it isnot attempted murder but wounding with intent to do grievous harm".This statement of the law emphasizes and stresses that in the offenceof attempt intention is the essence of the crime.
Now, reverting to the facts of the instant case the accused hasclearly manifested by his utterance his intention to commit the murderof the Police officer in whose direction he had fired the shot aftermaking the aforesaid utterance. The acts established by theprosecution evidence satisfy both the Proximity Rule and theEquivocality Test which are the correct criteria to determine whetherthe act of the accused constituted an attempt to commit murder.Hence, it is manifest that the contention of learned counsel for theappellant that the ingredient of an attempt to commit murder has notbeen established in the instant case is wholly misconceived both infact and in law. In the circumstances, we dismiss the appeal.
Finally, it was urged that the learned trial judge had not givensufficient reasons for his finding in terms of section 283 of the CriminalProcedure Code. On a perusal of the judgment it is manifest that thelearned Judge had referred to the evidence of the two prosecutionwitnesses, summarized the effect of their evidence and stated thatthere is consistency inter se in their testimony and that the evidenceof one corroborates the evidence of the other. Emphasis on theseaspects, taken together with the failure to impugn and contradict bycross-examination their testimony, supports to the hilt the findingsreached by the learned trial judge. We see no merit in this appealand, therefore, we proceed to dismiss the appeal and we affirm thefinding, conviction and the sentence imposed on the accused.
KULATILAKA, J. – I agree.