060-NLR-NLR-V-42-THE-KING-MENDIS.pdf
244
The King v. Mendias.
1941
[Court of Criminal Appeal.]
Present: Howard C.J., Moseley S.FJ., and Nihill J.
THE KING v. MENDIAS.•
29—M. C. Mat or a, 31,529.
Evidence—Acts connected with the guilty act to form part of the same transac-tion—Nature of injuries on persons other than deceased—Inadmissibleto prove intent—Evidence Ordinance, s. 6.
In a charge of murder the defence of the accused was that he did notinflict the blow that caused the death of the deceased.
Evidence was led by the Crown to the effect that persons other thanthe deceased received injuries >from blows struck by the accused on thesame occasion as well as medical evidence as to the nature of the injuries.
* 42 L. R. Ch. D. 636.
HOWARD CJ.—The King v. Mendias.
245
Held, that the fact that other persons than the deceased receivedinjuries was admissible in evidence under section 6 of the EvidenceOrdinance as being so closely connected with the guilty act as to formpart of the same transaction.
Held, further, that medical testimony as to the precise nature andextent of the injuries on other persons was not admissible in determiningwhether the accused had a murderous intent when he inflicted injurieson the deceased.
A
PPEAL from a conviction for murder by a Judge and jury before theSecond Southern Circuit.
C. S. B. Kumardkulasingham (with him S. Saravanamuttu), forapplicant.
H. T. Gunasekera, C.C., for the Crown.
Cur. adv. vult.
January 27, 1941. Howard C.J.—
This is an application for leave to appeal against a conviction formurder in a case tried by Mr. Justice Keuneman and a jury at Galle. Atthe commencement of his argument Counsel for the applicant with theleave of the Court proceeded to submit that on a question of law theconviction of the applicant could not be sustained. This is the mainground of the case put forward on behalf of the applicant. This questionof law is connected with the following passage that occurs in the learnedJudge’s charge to the jury :
“There were further facts spoken to by the Doctor which have abearing on the question of intention. If you accept the fact that thisaccused caused this injury in determining the question of intention youmay bear in mind the other injuries which he is alleged to have caused.If you accept the fact that he caused injuries on Francis Hewa Abeykoonalias Hinni Appuhamy, and on Susana Jayasekera, then you willremember .that in each case among the injuries suffered was a penetra-ting injury into the chest cavity. In the case of Francis HewaAbeykoon—I had better call him Hini Appuhamy as you have knownhim as Hini Appuhamy in the course of the case—there was a stabinjury just above the* region of the heart, little higher than the heartregion, which penetrated the chest cavity and endangered life. In thecase of Susana, there was an injury on the back of the chest which alsopenetrated the chest cavity and endangered life. She gave her age as78. Certainly she appeared to be an old woman.
“ Now, those injuries also may throw some light on the question ofintention of this accused when he inflicted the injury on Abraham’sleft thigh, and the only question which you have to determine iswherether you are satisfied beyond reasonable doubt that there was whatI have generally called a murderous intention when the accused usedthat weapon.
“ I do not think I need comment on the other injuries inflicted uponthe others. It is sufficient to say that certain injuries were spoken to.”It would appear that in the trial Court, Counsel for the applicant beforeany evidence had been tendered objected to the admission of medical
246
HOWARD CJ.—The King v. Mendias.
evidence as to the nature and extent of the injuries on persons other thanthe deceased who were injured on the ground that the jury would beunduly influenced thereby. The learned Judge admitted this evidenceinasmuch as the injuries were inflicted as a part of the same transactionwhich resulted in the death of the deceased and further that such evidenceas to the nature of the injuries inflicted on the other persons is relevant toprove the intention of the accused. Counsel for the applicant has withconsiderable force maintained that such evidence is not relevant to provethe intention of the accused. By inviting the jury to gauge the intentionof the latter from such evidence he contends that the learned Judge hasmisdirected them on a point of law and in such circumstances theconviction cannot be sustained.
The first point that arises for consideration is whether the objectionraised by Counsel for the applicant at his trial with regard to the admissi-bility of this evidence should have been upheld. Section 5 of the EvidenceOrdinance provides as follows : —
“ Evidence may be given in any suit or proceeding of the existenceor non-existence of every fact in issue, and of such other facts as arehereinafter declared to be relevant, and of no others.”
Hence evidence is only admissible if it tends to prove a fact in issue orsome other fact declared relevant by some subsequent section of theOrdinance. Other facts are declared relevant by the remaining sectionsin Chapter II. of the Ordinance, that is to say, sections 6-16 inclusive.The principles laid down in this Chapter of the Ordinance reproduce theEnglish law. Thus in Taylor on Evidence, 12th ed., p. 211, it is stated asfollows : —
“ The second general rule which governs the production of testimonyboth in civil and criminal cases is that evidence must be confined to thepoints in issue.”
In this connection the law as stated by Lord Herschell L.C. in Makin v.
The Attorney-General for New South Wales' is as follows: —
“…. evidence tending to show that the prisoner has been
guilty of criminal acts other than those covered by the indictment isinadmissible to lead to the conclusion that he is a person likely from hiscriminal conduct or'character to have committed the offence for whichhe is being tried. ”
“The Law of England” said Lord Campbell in R. v. Oddy*, “does notallow one crime to be proved in order to raise a probability that anothercrime has been committed by the perpetrator of the first ”. This generalrule, however, cannot be applied when the facts which constitute distinctoffences are at the same time part of the transaction whiich is the subjectof the indictment. Evidence is necessarily admissible as to acts whichare so closely and inextricably mixed up with the history of the guilty actitself as to form part of one chain of relevant circumstances and so couldnot be excluded in the presentment of the case before the jury withoutthe evidence being thereby rendered^ unintelligible. So in a case R. v.Whiley & Haines’, Lord Ellenborough cited a case where a man» [1894) A. C. 57.*20 L. .7. M. C. 198.
* 2 Leach 983.
HOWARD C.J.—The King v. Mendias.
247
committed three burglaries in one night and stole a shirt at one place andleft it at another, and they were all so connected that the Court heardthe history of all the burglaries and remarked that if crimes do intermix,the Court must go through the detail.
There is no doubt, therefore, that in this case the fact that persons otherthan the deceased received injuries inflicted by blows struck by theaccused was admissible in evidence as being so closely and inextricablymixed up with the guilty act itself as to form part of the same transaction.Such evidence would be admissible under section 6 of the EvidenceOrdinance. The question, however, as to whether medical testimony asto those injuries was admissible involves an examination and inquiry intothe relevance of such evidence. The precise nature and extent of theseinjuries were not in our opinion facts so connected with a fact in issue asto form part of the same transaction and so relevant under section 6.The learned Judge has, however, treated this testimony as evidence ofsimilar facts relevant to show the state of mind or intention of the accused.The law with regard to such evidence is formulated in Wills on Circum-stantial Evidence, 7th ed., pp. 77, 78 and 79, as follows : —
“ On the principle under consideration, all such relevant acts of theparty as may reasonably be considered explanatory of his motives and.purposes, even though they may severally constitute distinct felonies,are clearly admissible in evidence. Such evidence is known as‘ evidence of similar facts ’ ; and although it is inadmissible where itamounts to evidence of distinct and different offences against otherpersons, unconnected with and unrelated to the particular act inquestion, it is held to be relevant, and is frequently received, not for thepurpose of showing a pre-disposition to commit such a crime as theoffence charged, but to show the character of the act or the state ofmind with which it was done ; either to show guilty knowledge or awicked system, or to rebut obvious defences, such as mistake or accident.For these purposes evidence of similar acts, whether previous or subse-quent to the act charged, may be received on any criminal charge, or inany civil action or proceeding.”
The passage cited from Wills is based on the law laid down in numerousEnglish cases. In R. v. Geering *, the accused was charged with themurder of her husband with arsenic in September, 1848. Evidencetendered of arsenic having been taken by the prisoner’s three sons, twoof whom subsequently died, on subsequent dates was held admissible forthe purpose of proving (1) that the deceased husband actually died ofarsenic, (2) that his death was not accidental and that it was not inadmis-sible by reason of its tendency to prove or create a suspicion of asubsequent felony. R. v. Geering was followed in R. v. Richardsonacase of embezzlement in which it was held that evidence of errors made bythe accused in entering payments in the books before and after thosementioned in the indictment was admissible to explain motives ° andintentions. In R. v. Frances’, in an indictment for attempting to obtainmoney by false pretences from a pawnbroker to show guilty knowledgeevidence of offers of articles to other pawnbrokers was held to be properly
1 (1849) 18 L. J. M. C. 215.* (1860) 175 B. R. 1088.
3 12 Cox 612.
248
HOWARD CJ.—The King v. Mendias.
admissible. In R. v. Cotton where a prisoner was charged with themurder of her child by poison and the defence was that its death resultedfrom the accidental taking of such poison, evidence to prove that twoother children and a lodger had died previous to the present charge fromthe same poison was held to be admissible. The same principle wasaffirmed in the judgment of Lord Herschell L.C., in Makin v. The Attorney-General for Newf South Wales (supra) . In the course of his judgment theLord Chancellor stated as follows: —
“ On the other hand, the mere fact that the evidence adduced tendsto show the commission of other crimes does not render it inadmissibleif it be relevant to an issue before the jury, and it may be so relevant ifit bears upon the question whether the acts alleged to constitute thecrime charged in the indictment were designed or accidental, or to rebuta defence which would otherwise be open to the accused.”
Makin v. The Attorney-General for New South Wales was followed inR. v. Wyatts, where in an indictment for obtaining credit by fraud, evidenceof similar acts committed by the defendant at a period5 immediatelypreceding the commission of the alleged offence, was admissible as tendingto establish a systematic course of conduct, and as negativing any accidentor mistake or the existence of any reasonable or honest motive on his part.The whole question was exhaustively considered by the Court for Crowncases reserved in R. v. Bond * by a bench composed of seven Judges. Inthis case the accused was indicted for procuring the miscarriage of J.The evidence was that the accused, a Surgeon, had used certain instru-ments on J. The defence was that the accused was performing a lawfuloperation on J. Evidence tendered by the prosecution that the accusedhad on a previous occasion used the same instruments an the same manneron one T., with the avowed intention of procuring her miscarriage washeld by a majority of the Judges to be admissible because it negatived thedefence set up by the accused that his intention was to perform a lawfuloperation. Kennedy J., one of the majority Judges, in the course of hisJudgment, when referring to previous decisions, stated as follows: —
“ In all these cases it will, I think, be found that the occurrences ofwhich evidence was admitted were occurrences connected with intenton the part of the accused, so' repeated and connected with the offencefor which the person was'on his trial that, according to justice as well ascommon sense, there could be no serious challenge of its relevancy tothe issue, as to accident or mistake on the part of the accused in theparticular case which formed the subject of the indictment.”
The learned Judge then proceeded to cite the following passage fromStephen’s Digest of the Law of Evidence, Art. 12 : —
“ When there is a question whether an act was accidental or inten-tional, the fact that such act formed part of a series of similaroccurrences in each of which the person doing the act was concerned isdeemed to be relevant. ”
Kennedy J. later in his judgment stated that in R. v. Bond (supra) therewas not in dispute a question of accident or mistake. The question was112 Cox 400.* (1904) 1 K. B. 188.
(1906) 21 Cox 252.
HOWARD C-I.—The King v. Mendias.
249
whether the accused used the surgical instruments for a lawful or for anunlawful purpose. That was the sole issue ; in other words had he or hadhe not in using them the mens rea. In his opinion, if the evidence hadconsisted solely of the single act alleged by Gertrude Taylor as to the act' done to her nine months before, it ought not to have been admittedbecause a single isolated act is not just ground for any inference, and anact from which an inference is not justly to be drawn ought not to beallowed to go before the jury.
One further case deserved consideration. In JR. v. Samuel Voke wherethe indictment was for maliciously shooting, it was held that if itbe questionable, whether the shooting was by accident or design, proofmay be given that the prisoner at another time shot at the sameperson.
Careful examination of the various decisions indicates that in themajority of cases the purpose for which evidence of similar acts has beenadmitted is to negative accident or design. When evidence has beenadmitted showing systematic conduct of the prisoner at the time of theoffence charged, such evidence is admissible merely to negative accidentor mistake on his part. The judgment of Kennedy J. in R. v. Bond atfirst glance seems to indicate an extension of this principle inasmuch ashe states that in this case there was not in dispute a question of accidentor mistake. The question was whether the instruments were used for alawful or an unlawful purpose ; in other words the sole issue was whetherin using them the accused had the mens rea. The evidence was, therefore,admitted to rebut the defence of innocent user of the instruments putforward by the accused and hence within the ambit of the principleformulated in the other cases. Lawrence J. held that the evidenceshowed the illness of the prosecutrix was the result of design and not ofaccident. The evidence tended to rebut the defence set up of innocentoperation and to negative any reasonable or honest motive for its per-formance. Bray and Jelf JJ. held that the evidence was admissibleas proving a system or course of conduct.
That the principles laid down by the English cases are applicable to theCeylon Evidence Ordinance is clear from a consideration of the case ofEmperor v. Panchu Das & another *. The following passage from thejudgment of Sanderson C.J. is in point: —
“ The learned Judge admitted the evidence as showing identity,design and motive and illegal association, and that a system had beenpursued by them. It was first argued that the evidence of the threeabove-named women was admissible under section 15, Evidence Act.In my judgment this argument should not be acceded to. In this casethere was no question of the act being accidental or intentional. Thewoman was undoubtedly murdered in a brutal way ; her head waspractically severed from her body ; the deceased woman’s room hadbeen rifled and practically everything she possessed both in her roomor on her person had been stolen. There was no room for any doubtthat the acts with which the accused were charged were intentional.The only real question was, who was the person or who were the persons
1168 B. R. 934.
{1920) I. L. R. 47 Cal. 671.
250
HOWARD C.J.—The King v. Mendias.
who committed the crime. .Next it was urged that section 14, EvidenceAct,, applied. In my judgment this section does not apply. Therewas nothing in the evidence of the three women to show the state ofmind of the accused towards Dakho, or with reference to the particularmatter in question. ”
Mookerjee J. also held that reliance by the Crown on section 15 was ofno avail inasmuch as there was no room for any hypothesis that thedeath of the woman, whoever might have caused it, was accidental orunintentional. With regard to section 14, the same Judge stated thatthis section was of no assistance as the defence was a complete denialand no question of the character contemplated by section 14 did orcould possibly arise.
The question, therefore, of the admissibility of the evidence of theextent and nature of the injuries on persons other than the deceased mustbe considered in relation to the circumstances of the offence with whichthe accused was charged and his defence. The accused maintained thathe did not inflict the blow causing the death of the deceased. No questionarose as to whether the blow inflicted on the deceased was accidental orby design. Nor was the lawfulness of the blow in issue. Hence noevidence of system or a course of conduct was admissible to rebut adefence of accident or a blow lawfully given. One of the other personsalleged to have been stabbed by the accused received non-grievousinjuries, but no mention was made in the charge to the jury of the non-grievous injury. The question the jury had to decide was whether theaccused had a murderous intention when he inflicted the injuries on the.deceased. In R. v. Samuel Voke1 evidence was admitted of another attemptto shoot the same person to prove the general malicious intent of theprisoner. The malicious intent was the intent as regards one particularperson. The injuries inflicted in this case on other persons do not provemalicious intent of the accused towards the deceased. It seems to usthat the jury, if they adopted the suggestion of the learned Judge, wouldbe accepting evidence of one crime to raise a presumption that another,crime had been committed by the perpetrator of the first.
For the reasons given in this judgment the evidence to which I havereferred was not admissible. This in itself would not in the circumstancesof this case justify us in quashing the conviction. The direction of thelearned Judge with regard to the relevancy and effect of this evidence,however, is another matter. It is not possible to say that without thisdirection the jury must have arrived at the same conclusion. Thevarious other points raised by Counsel for the applicant with regard tothe facts are without substance. In view of our decision on the point oflaw, the conviction for murder is quashed. In pursuance of the powersvested in us by section 6 (2) of the Court of Criminal Appeal Ordinance,We substitute for the verdict found by the jury a verdict of guilty ofculpable homicide not amounting to murder and pass a sentence for suchoffence of 10 years’ rigorous imprisonment.
Sentence varied.
» 168 E. R. 934.