009-NLR-NLR-V-48-THE-KING-v.-BEYAL-SINGHO-et-al.pdf
The King v. Beyal Singho.
25
[Court of Criminal Appeal.]
1946 Present: Soertsz A.C.J. (President), Wijeyewardene and
Canekeratne JJ.
THE KING v. BEYAL SINGHO et al.
Appeals 48-50, with Applications 184-188.
S. C. 117—M. C. Chilaw, 25,756.
Bias—Suspicion of bias on part of trial Judge—Circumstances when suchsuspicion cannot vitiate trial—Requirement of proof of miscarriage ofjustice—Court of Criminal Appeal Ordinance, No. 23 of 1938, s. 5 (I).
Where the trial Judge had, prior to his appointment as Judge and.'while officiating as Attorney-General, advised the committing Magistratewith regard to the recording of evidence as against the sixth accused whowas subsequently acquitted at the trial—
Held, that the conviction of the first five accused should not be quashedin the absence of the slightest suggestion that there had been any-miscarriage of justice by reason of the fact that the trial Judge had in hiscapacity as Attorney-General advised the committing Magistrate inrespect of the sixth accused in the circumstances aforesaid.
A
PPEALS, with applications for leave to appeal, against fiveconvictions in a trial before the Supreme Court.
F. A. Hayley, K.C. (with him G. E. Chitty), for the accused, appellant.—The presiding Judge, when he was Attorney-General, had advised theMagistrate in the matter of committing the sixth accused for trial in thiscase. That means at a certain stage in the case he was acting as theprosecutor. Therefore the conviction of all the accused is bad in thatthere is a violation of the well recognized principle that the prosecutorshould never be the Judge in his own case. The fact that the sixthaccused was acquitted and the fact that no prejudice has been causedto the accused makes no difference. Even if there is no miscarriage of.justice the confidence of the public in the administration of justiceshould be maintained. For that purpose it is of importance that justice,should not only be done but manifestly and undoubtedly seen to be done.See Dingiri Mahatmaya v. Mudiyanse1; Dyson v. Kanagamma;Ratemahatmaya v. Ranasinghe ‘; Rex v. Sussex Justices, ex parte:MacCarthy *; The King v. Essex Justices, ex parte Perkins *; Reginav. Milledge and others, Justices of Weymouth “.
H. A. Wijemanne, C.C., for the Attorney-General.—The Judge when>he was Attorney-General only considered the effect of section 297 of the1Criminal Procedure Code and instructed the Magistrate that it was notnecessary to re-record the evidence, already recorded in the absence of'
1 (1923) 24 N. L. Jt. 377.» (1930) 31 N.L. R. 473.* (1934) 14 C. L. B. 2.
(1924) L. R. 1 K. B. 256.(1927) L. R. 2 K. B. 476.(1879) 40 L. T. 748.
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WIJEYEWARDENE J.—The King v. Beyal Singho.
the sixth accused, for the purpose of committing the sixth accused fortrial. The sixth accused has been acquitted and obviously no prejudice.has been caused to any accused at all.
The jurisdiction of this Court has been conferred on it by the Court ofCriminal Appeal Ordinance, and consequently this Court cannot exerciseany powers other than those given by that Ordinance. This Court has norevisionary or residuary powers like the Supreme Court. Section 5 ofthat Ordinance is the relevant section in this case, and under that section,apart from other grounds which do not arise in this case, this Court canonly allow an appeal if there has been a miscarriage of justice.Clearly there is no miscarriage of justice in this case.
In the cases of Stephen Sharman alias Henry Sutherland.1; BerkerlyBernard Bennet and Arthur John Edward Newtonit was held thatwhere the trial Judge sat on the Court of Criminal Appeal the Courthad a discretion whether to grant an adjournment or not on that ground.
Hayley, K.C., in reply.—The English cases do not apply. Apart fromthe fact that there is nothing which prohibits the trial Judge sittingin the Board of Appeal he would sit in either case as Judge, but in thepresent case the trial Judge, when he was Attorney-General, acted asprosecutor.
Cur. adv. vuIt.
December 16, 1946. Wijeyewardene J.—
Six accused were charged in this case on various counts under sections140 and 144, and sections 316 380, 382 and 383 read with section 146.After trial, the sixth accused was acquitted and the other accused wereconvicted on all the counts.
When the Crown Counsel was examining the second witness in the case,Mr. Chitty, Counsel for the first, second, third and sixth accused,submitted that the evidence of that witness and the other witnesses“ was not relevant because the evidence was not taken (in the Magistrate’sCourt) in the presence of the sixth accused ”. As the record showedthat the sixth accused “ was not to be found ” when the Magistrate wastaking down the evidence of those witnesses, the trial Judge ruled thatthe evidence objected to by Mr. Chitty was admissible against the sixthaccused, since “the evidence was read over (by the Magistrate) in thepresence of the accused after the appearance of the sixth accused in theMagistrate’s Court ”. At a later stage of the case, during the crossexamination of the fourth witness, Mr. Chitty brought to the notice ofthe trial Judge that, as Attorney-General, he had advised the committingMagistrate that it was not necessary to record afresh, after the appearanceof the sixth accused in the Magistrate’s Court, the evidence alreadyrecorded during his absence. Thereupon, the trial Judge made thefollowing order: —
“ I was not aware that any such ruling had been made in the recordbut I came to the independent view by a reading of the section (i.e.,section 97 of the Criminal Procedure Code) that re-recording of thisevidence was unnecessary. In any event, the fact that directions were
* (1013) 9 C. A. R. 146 at 157.
1 (1913):9 C. A. R. 130.
WUEYK WARDENE J.—The King v. Beyal Singho.
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given to the Magistrate with regard to a question of law, I do not thinkrhas influenced me in any way in arriving at the decision I made thismorning. But if the decision is wrong, it can be set aside before-another tribunal. But I do not think ihat the accused would beprejudiced by my answering the point of law in the way I have done.”In the petition of appeal filed by some of the accused one of the groundsof appeal is stated as follows : —
“The record shows that the learned trial Judge had at the non-summary proceedings advised the Magistrate in the capacity ofAttorney-General as head of the Department of Public Prosecutions.This fact was brought to the notice of the Court as soon as a documentin the record was discovered by Counsel, revealing this fact, at anearly stage of the trial. Although the learned trial Judge was pre-viously unaware of this fact, it is submitted as a matter of law that hecould not in the same proceeding function in these different capacities
It has been laid down in The King v. Sussex Justices, ex parte McCarthy1and a number of local and Indian cases that “ it is of fundamentalimportance that justice should not only be done but should ■ manifestlyand undoubtedly be seen to be done” and the rule is that nothing isto be done which raises a suspicion that there has been an improperinterference with the course of justice.
The question we have to consider is whether we could quash the con-viction of the first five accused on the ground set out in the petition ofappeal. The sixth accused on whose behalf the point' was argued beforethe trial Judge has been acquitted. There is not the slightest suggestionthat there has been the least miscarriage of justice whatever, so far as theother accused are concerned, by reason of the fact that the trial Judgehad in his capacity as Attorney-General given his opinion to the com-mitting Magistrate with regard to the recording of the evidence as againstthe sixth accused.
This Court has no jurisdiction to hear an appeal, unless the appellantscan bring themselves within the provisions of the Court of CriminalAppeal Ordinance, No. 23 of 1938 (vide Felstead’s case *.) The appellantsshould, therefore, rely in this case either on a question of law or anyground which appears to the Court to be a sufficient ground of appeal{vide section 4 of the Court of Criminal Appeal Ordinance). Now section5 (1) of the Court of Criminal Appeal Ordinance enacts—
“The Court of Criminal Appeal shall allow the appeal if they think.. . .. that the judgment of the Court before which the appellant
was convicted should be set aside on the ground of a wrong decisionon any question of law or that on any ground there was a' miscarriageof justice, and in any other case shall dismiss the appeal. ”
“Provided that the Court may, notwithstanding that they are ofopinion 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.”
1 (1924) 1 K. B. 258.
(1914) 10 Cr. App. R 129 at 13S.
28WUEYB WARDENS J.—The King v. Beyal Singho.
In Per era’s case1 the relevant ground of appeal was that the appellanthad not received a fair trial by reason of the fact that, owing to the date of •trial having been advanced without sufficient notice, the Counsel retainedby him was not able to be present and he was defended by an assignedCounsel. This Court considered that ground of appeal on the submission■of Counsel that in the circumstances of that case there has been such amiscarriage of justice as to invalidate the trial. In Woodward’s case2•the Court of Criminal Appeal in England quashed the conviction of anappellant, because it considered that the refusal of the trial Judge to■permit the appellant to conduct his own defence in person without theassistance of Counsel was wrong and “ resulted in an injustice to the-appellant ”.
The observations made in Richard Lewis’ case * help to show the positiona Court of Criminal Appeal has to take in dealing with certain appeals.In that case the trial Judge discharged the Jury after the trial had pro-ceeded for some time, as the prosecution applied for an adjournmentowing to the absence of some of the witnesses, though the applicationwas opposed by the appellant. A few days later, the trial was taken upbefore a new Jury and the appellant was convicted. In dismissing the:appeal, the Court of Criminal Appeal said—
“ The established law to the effect that the discharging of the Juryis in the discretion of the Judge, and that his exercise of the discretionis not subject to review, is not affected by the Criminal Appeal Act,1907, and therefore we have no jurisdiction to deal with it. Howeveralthough we cannot say it judicially, we would like to intimate that theJudge’s discretion in this case appears, if we rightly understand thefacts, to have been exercised in a way different from that in whichit has been our individual practice to exercise it. A Jury should not bedischarged in order to allow the prosecution to present a stronger caseon another trial. That is the rule on which Judges have, acted andon which we think we ought to act, but we have no jurisdiction to dealwith this matter.”
On the question when the Court of Criminal Appeal should interferewhere the matter alleged in the ground of appeal is one entirely withinthe discretion of the trial Judge, I would also refer to the dictum ofTrevethin, L. C. J. in Starkie’s case* that “the rule that a judicial dis-cretion cannot be reviewed must be qualified by some such words as* unless a manifest injustice is disclosed’ ”.
As we are satisfied in this case that there has not been any miscarriageof justice occasioned by the learned trial Judge hearing the case, we areunable to quash the conviction on the particular ground with which wehave dealt.
We direct that the appeals and applications be listed for the^consideration of the other grounds urged by the accused.
Objection overruled.
1 (1946) 47 N. L. R. 37.
* (1943) 60 Times L. R. 114.
s (1909) 2 Cr. App. L. R. 180.• (1921) 16 Cr. App. R. 61.