109-NLR-NLR-V-48-THE-KING-v.-EDWIN-et-al.pdf
HOWARD C.J.—The King v. Edwin.
337
[Court of Criminal Appeal.]
1947Present: Howard CJ. (President), Wijeyewardene
and Jayetileke JJT.THE KING v. EDWIN et al.
Applications 102-104S. C. 3—M. C. Gampaha, 30£37'
Confession—Charge of murder—Confessions by some accused—Extenuatingcircumstances disclosed in confession—No evidence given by accused—Confessions admissible to prove the extenuating circumstances—Applic-ability of English law—Evidence Ordinance, ss. 21 and 17 (2).
Where the prosecution seeks to lead in evidence a confession madeby an accused, the whole confession must be taken even though it con-tains matter favourable to the accused. The Jury may, however, attachdifferent degrees of credit to the different parts. The principles of theEnglish law are not inconsistent with the provisions of sections 17 (2) and21 of the Evidence Ordinance.
A
PPLICATIONS for leave to appeal against three convictions ina trial before a Judge and Jury.
U.P. Weerasinghe (with him A. P. de Zoysa, E. A. G. de Silva andC. Jayawickrema), for the first accused.
E. A. G. de Silva, for the second accused.
V. Perera, K.C. (with him Nihal Gunasekera and E. A. G, deSilva), for the third accused.
M.F. S. Pulle, Acting Solicitor-General (with him H. Deheragoda, C.C.),for the Crown.
Cur. adv. vult.
July 7, 1947. Howard C.J.—
In this case the first and second accused were convicted of the offenceof murder and the third accused of abetment of the first and secondaccused in the commission of that offence. The conviction of the firstand second accused rests on confessions made by them to the Magistrate.In those confessions they admitted that they assaulted the deceased,but at the same time they gave details of the circumstances in whichthe assault took place. If the Jury believed that the assault took placein such circumstances there was a possibility that they might haveconsidered that the offence did not amount to murder, but to culpablehomicide not amounting to murder. The first and second accused intheir confessions stated that they committed the assault on the deceasedat the request of E. de S. Wijeratne, one of the witnesses called by tbaCrown It has been contended by Counsel for the first and secondaccused that the conviction for murder cannot stand as the learnedJudge has failed to direct the mind of the Jury to the fact the*' if thecircumstances in which the assault took place were as state* by the
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HOWARD C. J.—The King vs. Edwin.
first and second accused in their confessions, they might come to theconclusion that the assault was committed under grave and suddenprovocation and the offence amounted not to murder, but to culpable-homicide not amounting to murder. The Acting Solicitor-General,Mr. Pulle, has argued that, although the first and second accused in theirconfessions have related the circumstances in which the assault took.place, the confessions cannot be employed by the accused to prove suchcircumstances. The Crown can prove from the confessions the fact ofthe assault on the deceased but the accused on the other hand cannotby reason of the provisions of section 21 of the Evidence Ordinance callin aid in their defence the confessions. It would have been differentif the first and second accused had testified in the witness box as to thecircumstances in which the assault took place. This they did not do,the second accused remaining silent while the first accused made astatement from the dock disclaiming any participation in the assault.Mr. Pulle has also contended that as the first and second accused haveconfessed to the fact that at the request of Wijeratne they went toMahara, Nugegoda, with the intention of assaulting the deceased, theycannot be heard to say that the assault took place only after they hadbeen provoked. We do not consider there is any force in this lastcontention. If the whole of the confessions were admissible in evidencethe first and second accused were entitled to ask the Jury to say that thecircumstances were such as to reduce the gravity of the offence. Nodoubt it would be open to the Jury to consider whether the circumstancesin which the first and second accused proceeded to the scene of theassault precluded any question of such assault taking place as the resultof grave and sudden provocation.
In support of his argument that the confessions were admissible inevidence to prove the circumstances in which the assault took placeCounsel for the first and second accused have referred us to Archbold31st edition, p. 377 and the 8th edition of Phipson on Evidence, pp. 253-254.The latter authority states that the whole confession must, in general,be taken even though containing matter favourable to the prisoner,though the Jury may attach different degrees of credit to the differentparts. We were also referred to the cases of R. v. Clewes1 and R. v. Jones *In R. v. Jones, Bosanquet, Serjeant, who was trying the case with aJury stated as follows : —
“ There is no doubt that if a prosecutor uses the declaration of aprisoner, he must take the whdle of it together, and cannot select onepart and leave another ; and if there be either no other evidence inthe case, or no other evidence incompatible with it, the declarationso adduced in evidence must be taken as true. But if, after the wholeof the statement of the prisoner is given in evidence, the prosecutoris in a situation to contradict any part of it, he is at liberty to do so ;*nd then the statement of the prisoner, and the whole of the otherevidence, must be left to the Jury, for their consideration, preciselyas ifc any other case, where one part of the evidence is contradictory
to anoi^er”.
1172 E. R. 678.
(172) E. R. 285.
HOWARD C J.—The King v. Edwin.
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The same principle was formulated in R. v. Clewes by Littledale J. whoat p. 681 staled as follows : —
"With respect to the prisoner’s confession, I think you must takeit altogether; and by that it appears, that though the prisoner waspresent, he did not act in the murder of Richard Hastings ; and if it isto be said that the prisoner did more than is stated, in his confession,there should be some evidence of that, which is not to be found in thiscase. ”
It has been urged by Mr. Pulle that, having regard to the statutoryprovisions of our law, namely, sections 17 (2) and 21 of the Evidence Ordi-nance, the English decisions to which I have referred are not relevant.A definition of a confession is to be found at p. 248 of Phipson. Thereit is stated as follows : —
Stephen states that “ a confession is an admission made at anytime by a person charged with a crime, stating, or suggesting theinference, that he committed the crime. ”
These words are reproduced in section 17 (2) of the Ceylon EvidenceOrdinance (Cap. 11). Moreover section 21 of the same Ordinance relatingto self-serving evidence sets out the English Law. This will be seenfrom a perusal of Chapter XVII of Phipson. The principles of Englishlaw to which reference has been made would therefore seem to be appli-cable. The fact that the burden of proving that an accused personcomes within one of the exceptions to section 294 of the Penal Code iscast on such person would not preclude the application of this principle.
It now becomes relevant to consider whether the learned Judge hasput the issue as to whether the confessions of the first and second accusedtaken as a whole and in conjunction with the other evidence in the casehave established the fact that, when they assaulted the deceased, theywere acting under grave and sudden provocation. The learned Judgeseems throughout his summing-up to have been of the impression thatthe deceased man was sleeping. There is, however, no evidnce thathe was struck when he was asleep. The doctor’s evidence is that he wasprobably lying down. At pp. 11-12 the learned Judge states as follows : —
"I said then, and I tell you now, that I do not propose to leave the.question of grievous hurt to you. If I am wrong I will be set right.It would be a case of misdirection on my part in a case of this kindwhere, if you accept the facts, a sleeping man is struck down withheavy instruments, to suggest to you the possibility of a verdict ofgrievous hurt, and I do not propose to leave it to you. So, gentlemen,with regard to the first and second accused there are three verdictsopen to you according to the facts ; guilty of murder according to theintention—murderous intention. If you negative that, then thereis the question of culpable homicide not amounting to murder if theyhad knowledge that their act was likely to cause death, and lastlynot guilty if you are not satisfied beyond reasonable doubt that thefirst and second accused did this. ”
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There is no mention of a verdict of culpable homicide not amounting tomurder by reason of the fact that the assault was committed after graveand sudden provocation.
Again on page 30 the learned Judge states that the doctor’s evidenceis that the deceased was struck d,own while he was asleep. On p. 31 alsothere is a reference to the deceased being asleep. On p. 34 are passagesabout the shifting of the burden of proof and on pp. 36-37 it is stated asfollows : —
“If a ]jerson kills another when he is labouring under grave andsudden provocation given by the deceased man in hot blood then whatotherwise would be murder would be reduced to culpable homicidenot amounting to murder. Again the burden of proving that is onthe accused. That is to establish that by a preponderance of pro-bability or on the balance of evidence. What is the provocation ?The provocation must be grave and it must be sudden. Is there anyprovocation which is grave and sudden which justified anybodyfrom taking firewood sticks or heavy rice pounders and hitting theman and killing him? The Crown submits that that defence hasnot been established. Then the only other thing I can think ofis killing in a sudden fight without premeditation. People fall tofighting and one man kills the other in hot blood. There the lawtaking the infirmities of human nature into consideration says thatin a case like that the offence is reduced from murder to culpablehomicide not amounting to murder. Well, was there a sudden fight?On their own showing each man says the deceased was sitting on his bed.How can there be a fight when one man is sitting on his bed? Well,that is the case against the first and second accused. I do not pro-pose to. come back to the case of-the 1st and 2nd accused except atthe end of my summing up when I shall recapitulate briefly theevidence.”
Until pp. 94-95 are reached the cases of the first and second accused donot receive any further consideration in the charge. On these pages thecase against them is summed up as follows : —
“ Well, gentlemen, I have done.. You have got the cases againstthe 1st and 2nd accused. The possible verdicts are the 1st and 2ndaccused are not guilty, if you are of opinion that they were actingin self-defence and did, not exceed the right, of self-defence by usingmore force than was necessary. I have pointed out to you that thereis nothing on the evidence on which a foundation for the self-defencecould be raised. You will acquit them also if you for some reasonreject the statements X 1 and X 2. It is my duty to point out to youthat X 1 and X 2 have not been attacked and that the 1st and 2ndaccused could have given evidence but they have not. They will beguilty of murder if you find that they caused the death of the deceasedby doing an act with the intention of causing death or with the intentionof causing bodily injury sufficient in the ordinary course of nature tocause death.
If you are prepared to absolve them of that murderous intentionyou will consider the question of knowledge. If they caused the death
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of the deceased by doing an act with the knowledge that their actwas likely to cause death then the offence would be not murder butculpable homicide not amounting to murder.
The prosecution submits to you that to strike a sleeping man witha heavy weapon splintering his skull to fragments and breaking hischest in the manner described by the doctor you will have no hesita-tion in holding that the 1st and 2nd accused were actuated not onlyby knowledge but actually with a murderous intention. In such acase however unpleasant the duty may be it will be your boundenduty to find the accused guilty.
The benefit of every reasonable doubt must beto the 1st and
2nd accused. The statements X 1 and X 2 and the unsworn statementof the 1st accused are only evidence against the makers and mustnot be utilised even unconsciously to the detriment of the co-accused. ”The learned Judge has not in the summing up anywhere asked the Juryto examine the confessions of the 1st and 2nd accused and considerwhether those statements indicate that the assault was committedafter grave and sudden provocation. Such an issue is withdrawn byreason of the fact that according to the doctor the deceased was struckdown when asleep, and also the inference to be drawn from the passageon p. 36 where the learned Judge says : —
“ Is there any provocation which is grave and sudden which justifiedanybody from taking firewood sticks or heavy rice pounders andhitting the man and killing him ?”
Again on p. 37 it is stated “ How can there be a fight when one man wassitting on the bed ?” Nowhere has the learned Judge asked the Jury toconsider whether XI and X2 indicate provocation and was it grave andsudden. In our opinion this issue should have been put to the Jury'.The verdict of guilty of murder against the 1st and 2nd accused cannotin the circumstances be sustained and we set it aside and substitutetherefor a verdict of guilty of culpable homicide not amounting to murderfor which offence we impose a sentence of 15 years’ rigorous imprisonment.
The argument put forward by Mr. H. V. Perera on behalf of the 3rdaccused rests on very different grounds. The 3rd accused was chargedwith abetting the 1st and 2nd accused in committing the offence of murderthat is to say causing the death of Gamage Jamis Singho. The confessionsmade by the 1st and 2nd accused are evidence against these accused onlyand are not evidence which can be taken into consideration when theguilt of the-3rd accused is being examined. The learned Judge has onseveral occasions during the couse of his summing up directed the Juryaccordingly. Such a direction, however, according to the contention ofMr. Perera is not sufficient. Mr. Perera contends that without such con-fessions there is no evidence to prove that the 1st and 2nd accused causedthe death of the deceased. In these circumstances Mr. Perera maintainsthat the charge of abetment of murder against the 3rd accused shouldhave been withdrawn from the Jury. The evidence against the 3rdaccused can be summarised as follows : —
(1) Testimony indicating that the 3rd accused on his return fromIndia in September was annoyed with the deceased because
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the latter had employed William at the estate. According toPineris, the 3rd accused scolded the deceased. It was alsoin evidence that the 3rd accused abused the deceased who wasthe driver of his car because of his bad driving.
<2) The evidence of Pineris that about a week before the 27th Octoberthe 1st accused came and told the 3rd accused that the deceasedhad written a letter to Wijeratne. The 3rd accused is thensaid to have told the 1st accused to assault the deceased anddrive him away. The isi accused then returned to the estate.A week later according to Pineris the 1st accused again cameto the dispensary about 9 or 10 a.m. The 1st accused wentupstairs and spoke to the 3rd accused in the hearing of Pineris.The 3rd accused asked the 1st accused if the deceased was there.On the 1st accused replying in the affirmative the 3rd accusedsaid “ You alone cannot do ” and called to the 2nd accused.When the 2nd accused came the 3rd accused said “ Both ofyou go to the estate and while the driver is asleep beat him andkill him. If you are involved in a case I will save you ”. Thefact that the 1st accused came to the dispensary and wentupstairs to see the 3rd accused on the morning of the 26thOctober is corroborated by the witness Tennekoon, a salesmanin the dispensary.
It is in evidence that the 2nd accused went to the estate on the
morning of the 27th October. He and the 1st accused wereseen in the compound on the estate by the witness Podinonaon the morning of the 27th. The 2nd accused was also seenon the compound by Podinona at 9.30 a m. on that day. The1st and 2nd accused were also seen on the estate with the-deceased at about 6.30 p.m. 'that evening by the witness NorisAppu. On the following morning this witness went to theestate about 8.30 a.m. and found the deceased lying injuredon a sofa face upwards. There were no signs of the 1st and 2ndaccused.
Evidence as to the movements of the 3rd accused just prior to and
after the assault on the deceased. This evidence accordingto the Crown indicates that the 3rd accused was not onlyshielding the 1st .and 2nd accused, but also privy to the com-mission of the offence. According to the witness Peter Wije-naike the 3rd accused came to his garage at Chilaw on theevening of the 27th October accompanied by William andPineris. Most of the night was spent driving round Colombo.The Crown draws the inference from this strange behaviouron the part of the 3rd accused that the latter wanted to keepWilliam from returning to the estate at a time when the 1stand 2nd accused would be executing the 3rd accused’s com-mission to .kill the deceased. On the 28th October Peter andthe 3rd accused came to the dispensary about 7 a.m. The 1stand 2nd accused arrived about 9 a.m. and went upstairs. Theyleft 10 minutes later. A little later the 3rd accused and Peterpicked up the 1st and 2nd accused at Bambalapitiys junction.
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The 1st and 2nd accused were left at Maradana Station andlater picked up at Madampe. They reached Peter’s garageat Chilaw about 4.30 or 5 p.m., and then went to a temple.In the middle of the night the 3rd accused insisted on themall going to Anuradhapura. The three accused and Peterarrived there at 5.30 a.m. and stayed with the witness HeratBanda. The 3rd accused had come without any clothes.Peter went to fetch the 3rd accused’s clothes and returned to-Anuradhapura on the 5th November. The three accused werestill there. On the 6th November, Peter and the 3rd accused,went to Trincomalee returning the same day. On the 7thNovember, the 3rd accused and Peter returned to Chilawleaving the other two accused at Anuradhapura. The 3rdaccused then returned to Colombo. On the 8th NovemberPeter went to Anuradhapura and fetched the 1st and 2ndaccused who were then taken into custody by the Police.
It is contended by Mr. Perera that the evidence that I have summarisedraises only an element of suspicion so far as the complicity of the 3rdaccused in causing the death of the deceased is concerned. If the Juryhad been told that they could not take into consideration the statementsof the 1st and 2nd accused as to how the deceased met with his death,there was no evidence to prove this fact. Hence there was no evidenceto establish the charge of abetment of this particular murder. Theposition created by the evidence in this case is both anomalous andartificial. But we think that Mr. Perera’s contention is legally correctand the learned Judge should have either withdrawn this particularcharge from the Jury or else directed them that there was only circum-stantial evidence as to how the deceased met with his death. The cir-cumstances detailed in this judgment do supply a chain of evidencewhich although providing material for suspicion do not point unequivo-cally to the guilt of the 3rd accused. If the Jury had been directedproperly with regard to the evidence relating to the death of the deceasedit is impossible to say they would have arrived at the same verdict.The evidence of Pineris the chief witness against the 3rd accused musthave been viewed with suspicion by the Jury particularly as it was5 months before he made a statement to the Police in spite of the factthat Inspector Senanayake visited the dispensary on several occasionsand asked him if he knew anything about the matter. In the circum-stances the conviction of the 3rd accused on the charge of abetment ofmurder is set aside. We are not ordering a re-trial on this charge becausewe do not consider that such a trial would result in a conviction. Weconsider, however, that the Crown have proved that the 3rd accusedhas committed an offence under section 108 of the Penal Code, namely,abetment of an offence punishable with death, if the offence be notcommitted, in consequence of the abetment. We find him guilty ofthis offence and impose a sentence of 7 years ’ rigorous imprisonment.
Convictions of 1st, 2nd and
3rd accused varied.