051-NLR-NLR-V-47-THE-KING-v.-GUNARATNA-et-al.pdf
The King v. Ghir'aratna.
145
fCouBT of Crtmiwai. Apfeal.]
1946 Present: Wijeyewardene J. (President), Cannon and Canekeratne JJ.
Circumstantial evidence,—An aspect of—Prosecution evidence pointing toguilt of accused—Onus on accused to give innocent explanation, of suchevidence.
In a cose of circumstantial evidence the facts given in evidence may,taken cumulatively, be sufficient to rebut the presumption of innocence,although each fact, when taken separately, may be a circumstance onlyof suspicion.
The Jury are entitled to draw inferences unfavourable to an accusedwhere he is not called to establish an innocent explanation of evidencegiven by the prosecution, which, without such explanation, tells for hisguilt.
A
PPEALS by four accused against certain convictions by a Judgeand Jury.
N. Nadarajah, K.C. (with him S. W. Jayasuriya), for first accused,appellant.—Counsel analysed the facts and argued that the evidenceagainst the appellant was entirely circumstantial. Even if the prosecutionevidence is believed in its entirety, the guilt of the appellant cannot bepresumed as the circumstances do not preclude an innocent user of the car,particularly as it was a hiring car. There was therefore no case to gobefore the Jury. See R. v. Hodges1, S. v. Taylor2, Emperor v. Browning3The case against the appellant was one of suspicion only. Although theJudge’s charge may be fair, where the verdict is unreasonable and it isnot safe to convict this Court will quash the conviction. SeeKing v. Abeyvnehrarna,1, King v. Mustapha Lebbes, King v. Pabilis et oi6,King v. Tihiriya7, R. v. Bourn8, R. v. Dibble9, King v. Appuhamy10,Kingv. VelupiUai11.
H. W. Jayavmrdene, for third accused, appellant.—Counsel analysedthe evidence against the third accused and argued that the evidenceagainst him was not sufficient to rebut the presumption of innocence.He contended that the Judge should have withdrawn the case from theJury. He cited R v. Dibble and Williams12, King v. Amolis13, also Willson Circumstantial Evidence, (7th Ed.) pp. 323, 326 and 379-380.
Second and Fourth accused, appellants in person.
T. S. Fernando, C.C., for the Crown, pointed to the evidence againsteach of the appellants and argued that tho second accused was in actualcontrol of the car X 6159, that the first and third accused were injoint possession of that car along with the second accused, and that the4th accused was in constructive possession thereof. .
THE KING v. GUNARATNA et al.
62—65—M. C. Kandy, 15,003.
1 168 E. R. 1136.
* (1928)21 Cr. App. R. 20.
» 18 Cr. L. J. {India) at 483.
7 {1944) 45 N. L. R. 474.
4 {1943) 44 R. L. R. 254.
(1943) 44 N. L. R. 505.
{1944) 45 N. L. R. 541.
8 {1940) 28 Cr. App. R. 141.8 {1908)1 Cr. App. R. 155.
10 {1945) 46 N. L. R. 128.
11 {1945) 46 N. L. R. 424.
18 {1908)1 Cr. App. R. 155.
(1943) 44 N. L. R. 370.
14ft
CANNON J.—The King v. Gunaratna.
The action of the Judge in not withdrawing the case from the Juryis correct and the verdict is not unreasonable. The force of suspiciouscircumstances is augmented whenever the party attempts no explanationof facts which he may reasonably be presumed to bo able and interestedto explain—Wills on Circumstantial Evidence (7th Ed.) p. 109.
Counsel also cited Regina v. Exall1, R. v. Simpson 2, R. v. Crooks 3, andreferred to the dictum of Lord Ellenborough in R. v. Lord Cochrane *referred to in 41 N. L. R. at p. 344.
N. Nadarajah, K.G., in reply.—Joint possession was not the case for theCrown. If it was, there was serious misdirection in that no directionabout possession was given to the Jury. It cannot be said that thefirst accused was in possession of the stolen articles—Excise Inspector,Kandy, v. Punchi Mahatmaya6 ; Ponnachipillai v. De Silva6 ; MuttuBanda v. Weerasekere’* ; jR. v. Crane6.
Cur. adv. vuU.
March 25, 1946. Cannon J.—
The four appellants were indicted on charges of breaking into thegarage of Dr. S. P. Wickremasinghe, Lady McCallum road, Kandy,on the night of June 23, 1944, and stealing tyres and tools, and ofbreaking into the garage of Mr. J. W. Wickremasinghe, Peradeniya road,Kandy, on the same night and stealing five wheels, tyres and a wheel-brace.
The evidence was that a Vauxhall 14 h. p. hiring car, X6159, belongingto the fourth accused, was seen on the morning of June 23, goingtowards Kandy from the direction of Colombo with five or six unidenti-fied persons. In the early afternoon it passed Dr. Wickremasinghe’sgarage in Lady McCallum road three times and again at about 10 f.m.It was also seen at Katugastota, and at about 5.30 p.m. it stopped out-side an hotel at Gampola. On each of these occasions several peoplewere in the car, and on one of the earlier times when it passed Dr. Wick-remasinghe’s garage, the first accused was identified as one of theoccupants, and when it stopped at the Gampola hotel, the first, secondand third accused were identified as three of five occupants. At aboutmidnight it was seen stationary about 60 yards from Dr. Wickrema-singhe’s garage. It then had three occupants, one of whom explainedto Dr. Wickremasinghe’s gardener that they had run out of petrol andthat another of their party had gone to fetch some. The gardenercould not identify any of the party. The next morning Dr. and Mr.Wickremasinghe’s cars were found on the highway some distance fromtheir garages and minus their wheels, tyres and tools.
The car X-6159 was not seen again until two days later when at9.30 p.m. it was seen standing empty outside a cinema theatre at Ratna-pnra. A couple of horns later the first three appellants got into it, and asit was about to be driven off by the 2nd accused, the Police detained thecar and its occupants. When searched, both the first and second accusedhad on them a number of car switch keys, and in the car was found
1 176 E. R. 853.5 (1945)46 N. L. R.88.
(1909) 2 Cr. App. R.128.« (1945)46 N. Ij R358
5 (1910) 4 Gr. App. R.60■1 (1945)46 N. L. R.546.
Gurney's Rep. 479." (1912)7 Cr. App.R. 113.
CANNON J.—The Xing t>. Qunaratna.
147
Mr. J. R. Wickremasinghe’s wheel-brace among no less than five wheel-braces in the tool box under the bonnet, and on one of the wheels wasone of the tyres which had been stolen from Mr. J. R. Wiekremasinghe’sgarage during the night of June 23. The number on this tyre had in theshort interim been defaced and another substituted for it. Later whenthe car was taken to Kandy, a more thorough search revealed the presenceof a fully loaded revolver hidden behind the arm-rest of the back seatand a jemmy concealed in the cushion back of the front seat and to whichaccess was obtained through a tear in the upholstery. This jemmyfitted, with the perfection of a glove, one of the marks on Dr. Wickrema-singhe’s garage door where the padlock staple had been levered out.
No evidence was called by the defence and the appellants wore convictedof the offences charged. It was submitted in this appeal that the evidencedid not warrant their conviction because, inter alia, it being a hiring car,they might have been innocent passengers who had hired the car or beengiven a lift; that the revolver and jemmy being hidden and the wheel-braces being in the tool-box under the bonnet and the stolen ty: e on oneof the running wheels, the appellants would not necessarily have anyknowledge of their history or presence on the car ; and that as regardsthe switch keys they might have been yale lock keys. It was emphasisedthat the conviction depended entirely on circumstantial evidence, andcontended that evidence of these facts, even assuming them to be true,did not rebut the presumption of innocence. It was not seriouslycontested that the car X 6159 was the car that was used in the crimes,but it was argued that the evidence was not sufficient to implicate theappellants as occupants of the car at the time of the crimes.
It becomes necessary to consider the bearing of this evidence as itrelates to the appellants individually and jointly.
It is to be noted that the car can, without speculation, be said to havebeen equipped on the night of June 25, for some felonious purpose and,in particular, one connected with motor cars, having on it, as it did,no less than five wheel-braces for the removal of motor-car wheels, inaddition to the loaded revolver and the jemmy. It may, I think, beproperly described as a bandit car.
It is also to be noted that the homes of all the appellants are in Colombo,from which Ratnapura lies 56 miles away in one direction and Kandyover 70 miles away in another direction. One of the witnesses alsoexpressed the opinion that the first three appellants were of the artisanclass, although the first accused was said to bo the “ proprietor of a socialclub ” in Colombo. To be exact, the first accused lives at Wellawatta,the second accused at Rajagiriya, and the third and fourth accused atSlave Island.
The fourth accused is the owner of the car, which, in addition to beingequipped for banditry, had on it one of the tyres that had been stolenless than 48 hours before. It is true that he was never identified as oneof the occupants of the car on the 23rd, but as owner of the car someexplanation was to be expected from him, if he was innocent. Hisassociation with the second accused can be inferred also from the factthat the second accused was not only driving the fourth accused’s banditcar on June 23 and 25, but was also on the 24th driving another car at
148
CANNON J<—The King v. Gunaralna.
Wellawatta, the possession of which the fourth accused was at the timeretaining pending payment for repairs done by him to it. At this timethe second accused was accompanied by tho first accused.
As regards the second accused he was identified as the driver of thebandit car when it was at Gampola on June 23 and at Ratnapura onthe 25th, and in his pockets were found six car switch keys and one padlockkey. So he is the driver of the bandit car at Kandy on the evening of thocrime and at Ratnapura on the 25th when it was equipped as stated andhad on it some of Mr. J. R. Wiekremasinghe’s property together withthe jemmy which fitted the mark on Dr. Wickremasinghe’s garage door.The implications of this evidence as regards the guilt of the secondaccused are, in my opinion, clear—in the absence of an explanation.
Taking the case of the first accused, he was identified in the banditear with a number of others on one of the earlier times it passed Dr.Wickremasinghe’s garage on the afternoon of the 23rd, and also when itstopped at tho Gampola hotel, where he and the other four occupantsof the car, of whom the second and third accused were also identified,had a meal together. Ho was also in tho bandit car when it was stoppedby the Police at Ratnapura on the 25th equipped as stated and havingon it the stolen property mentioned. The removal of a victim’s car bymobile thieves operating from another car—which was the techniqueemployed in this case—would require the services of two persons ableto drive ; and it was in evidence that the 1st accused had this abilityin common with the second accused, for he had in his possession a drivinglicence. Moreover, he had on him no less than four car switch keys,which would seem to be more useful to a person intending to steal motorcar equipment than to a proprietor of a social club. And if the firstaccused was an innocent passenger of this sinister car at Kandy on the23rd, it was an unfortunate coincidence that when he was arrested in thocar at Ratnapura, he and the second accused had between them a totalof ten car switch keys. His association with the second accused is alsoshown by the fact that he was with him in another car possessed by thofourth accused at Wellawatta on the 24th. I am unable to agree withthe contention that these facts called for no explanation from tho firstaccused.
The evidence against the third accused is less in quantity than thatagainst the others ; but he was identified with the second and firstaccused at tho Gampola hotel, where he inquired for meals on theirbehalf and joined them at the meal; he was in the bandit car then andalso when it was equipped as stated at Ratnapura on the 25th. It istrue that no car switch key was found on him, but not only was he in theKandy district on the day of the crimes with the first and second accusedin car X6159, but two days later he was 100 miles away from Kandywith the first and second accused in the same car, with the added circum-stances that the first and second accused were then found to be in possessionof ten car switch keys and the car was discovered to bo equipped as des-cribed and to have on it some of Mr. J. R. Wickremasinghe’s propertywhich had been stolen at Kandy a few hours after he had been seen in thecar at Kandy. These facts clearly indicate an occasion for the third
Kutnaravel Nadar v. Sokkalal Sam.
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accused, if he wished his presence at Kandy and Ratnapura in thesecircumstances not to he construed against him, to give evidence inexplanation of if.
The facts given in evidence are characterised by Mr. Nadarajah andMr. Jayawardene as circumstances only of suspicion. I agree that thesignificance of each fact, taken separately, may be so termed, but thequestion for consideration is whether, taken cumulatively, they aresufficient -to rebut the presumption of innocence. This aspect ofcircumstantial evidence must have been in the mind of Pollock, G.B.,when he remarked many years ago in Regina v. Exall (176 EnglishReports, Nisi Prius, at p. 85S):—
It has been said that circumstantial evidence is to be consideredas a chain, and each piece of evidence as a link in the chain, but that isnot so, for then, if any one link broke, the chain would fall. It is morelike the case of a rope composed of several cords. One strand of therope might be insufficient to sustain the weight, but three strandedtogether may be quite of sufficient strength.
In my opinion, these circumstantial facts connect the prisoners not onlywith the bandit car but also with one another, and it is not merely thatconnection which implicates them but the circumstances in which they werethus associated. These circumstances indicate that the first, second andthird accused were not innocent passengers in the car ; while the pre-sumption of guilt arising from possession of stolen property has not beenrebutted by the fourth accused. The summing-up of the trial Judgehas not been impeached, and no one could fairly say that the Jury’sverdict was perverse.
The majority of the Court are therefore of opinion that the circumstan-tial evidence was such as to establish against the first and third accuseda prima facie case of guilt, which, without explanation, entitled the Juryto find a verdict against them on the principle that the Jury are entitledto draw inferences unfavourable to a defendant where he is not calledto establish an innocent explanation of evidence given by the prosecutionwhich, without such explanation, tells for his guilt. As regards thesecond and fourth accused the Court is unanimous in its decision not todisturb the verdicts against them. All the appeals are therefore dis-missed and the convictions affirmed.
Appeals dismissed.