THE KING v. HEMASIRI SILVA

108-NLR-NLR-V-43-THE-KING-v.-HEMASIRI-SILVA.pdf


MOSELEY S.P.J.—The King v. Jiemasiri Silva.
457
[Court of Criminal Appeal.]
1942Present : Moseley S.P.J., Hearne and de Kretser JJ.
THE KING v. HEMASIRI SILVA.
65—M. C. Colombo, 38,765.
Court of Criminal Appeal—Application to argue new ground of appeal—Failure to apply for extension of time—Notice of appeal on four grounds—Supplementary notice—Arugument on new ground refused—Court ofCriminal Appeal Ordinance, s. 8 (1).—
The appellant was convicted on .July 29, 1942. Application for copyof proceedings was made on August 4 and the copy was supplied onAugust 12, i.e., on the day on which the time for giving notice of appealexpired.
On August 6. the appellant filed a notice of appeal on questions of lawand a notice of application for leave to appeal under section 4 (b). Inhis notice of appeal he set out four grounds of appeal.
On August 12, he filed a supplementary notice, setting out a furtherground, intimating that a copy of the charge had only been just availableand it was not possible to formulate all the grounds of appeal. Thisnotice was signed by Counsel. In the course of the argument inappeal. Counsel sought to address the Court on a point not set out inthe notice of appeal.
Held, that the case not being a capital case application to argue thenew ground of appeal should not be allowed, as there was delay in apply-ing for a copy of the proceedings ; there was no application for extensionof time and, although the charge to the Jury had been in Counsel’shands for three weeks, no supplementary notice setting out thisparticular ground had been filed.
The principles that should be applied when considering an applicationfor extension of time within which to appeal are equally applicableto an application for leave to add a ground of appeal.
¥.
a PPEAL from a conviction by a Judge and Jury before the 3rdTi. Western Circuit.
J. E. M. Obcyesekere (with him R. G. C. Pereira), for appellant.
J. M. Fonseka. F.olicitor-General (with him E. H. T. Gunasekera, C.C.),for the Crown.
Cur. adv. vult.
September 14, 1942. Moseley S.P.J.—
The appellant was convicted on July 29, 1942, of two offences Sgainstthe Defence (Miscellaneous) Regulations, which may be stated shortlyas follows : —
Endeavouring to cause disaffection among His Majesty’s subjects
in Ceylon by printing and publishing a certain article, and
Endeavouring to influence public opinion in Ceylon in a manner
likely to be prejudicial to' the public safety, defence of theIsland, the maintenance of public order or the efficient prose-cution of the war by printing and publishing the said article.
458MOSELEY S.P.J.—The King v. Hemasiri Silva.
The article, the subject matter of the charges, appeared in a copy ofa Sinhalese newspaper, “ Kamkaruwa ”, dated March 21, 1942.
The first ground upon which the appeal was argued was thatthere was no evidence in law upon which the appellant could be convicted..One point upon which the appellant had to satisfy the Jury was that, onMarch 21, 1942, the appellant was not the printer and publisher of thenewspaper, which on that date had been in existence for some eighteenmonths. The appellant is admittedly one of those responsible for thebirth of the paper and it is he who made the declaration, required bysection 2 of the Newspapers Ordinance (Cap. 138), to the effect that hewas the printer, publisher, and proprietor. It was he who signed andsent, to the Registrar-General, as required by section 7 of the Ordinance,copies of the newspaper up to and including No. 137, which was datedMarch 14; 1942, and was that which immediately preceded No. 38,in which appeared the article in question. Further, each number of thenewspaper, including No. 38, bore on it a notification, in compliancewith section 6 of the Ordinance, that it was printed and published bythe appellant.
The appellant sought, at the trial, to show that, for some considerabletime before March 21, 1942, he had lost interest in the paper and, indeed,wished to stop its publication. As negativing such a state of mindin the appellant we have, in addition to the facts already mentioned,his omission to take any steps, prior to the publication of the article,to make any communication to the proper authority' that there was anychange in the personnel responsible for the production of the paper, asrequired by section 2 of the Ordinance. In cross-examination, healleged that on March 16, and- again on the 19th, he went to see Ambul-deniva, the actual printer of the newspaper, and told him not to print thepaper in his (appellant’s) name. Had he been able to establish the factof those visits and requests there would have been a strong presumptionthat he was not privy to the publication of No. 38. But Ambuldeniyawas not cross-examined on this point, and appellant’s evidence is un-supported. Moreover, on March 19, he wrote to the Registrar-General,enclosing copies No. 31-37. One would suppose that if, at that date,he was desirous ©f ceasing publication of the paper, it was a convenientopportunity of notifying the Registrar-General that, as far as he wasconcerned, there would be no further issue. Further, if the allegedinterviews with Ambuldeniya had taken place, there would seem to beno necessity for the letter of March 22, in which he says he stated thathe could not be responsible thereafter, and which, it will be noted, waswritten dn the day after the publication of the article.
: I do not propose to review the evidence on this point in further detail.In our view, there was ample evidence that appellant printed andpublished the newspaper on March 21. Did he do so in the endeavouralleged in the respective counts of the indictments ? That was a matterwhich was properly left to the Jury.'
The point was then taken that the learned trial Judge, misdirected theJury inasmuch as, having told them that the witness Ambuldeniya was-an accomplice, he did not warn them of the danger of accepting hisevidence without corroboration. Without dealing with the question
459
MOSELEY S.P.J.—The King v. Hemasiri Silva.
whether Ambuldeniya was an accomplice, it is sufficient to say that, onthe hypothesis that he was in fact an accomplice, there was sufficientcorroboration provided by the evidence of the appellant, particularlyas to his own conduct, to render a warning unnecessary. The appealon the grounds set out in the notice, fails, as does the application for leaveto appeal on the facts.
In the course of his argument, Counsel for the appellant sought toaddress us on a point not set out in the notice of appeal. He asked forthis indulgence upon the ground that there had been a delay in supplyingthe appellant with a copy of the proceedings, including the charge to theJury, in the trial Court. In that connection, the facts are that theappellant was convicted on July 29, application for the copy of the pro-ceedings was made on August 4, and the copy was supplied on August 12,that is to say, on the day on which the time for giving notice of appealexpired. On August 6, the appellant had filed a notice of appeal, onquestions of law, and a notice of application for leave to appeal undersection 4 (b). In his notice of appeal he set out four grounds of appeal.On August 12, he filed a supplementary notice, setting out a furtherground, and intimating that, as a copy of the charge had only justbecome available, it was not possible for him to formulate all the groundsof appeal that might be available to him at the hearing. This noticewas signed by Counsel. It cannot, therefore, be contended that theappellant was in ignorance of the provision in the Court of CriminalAppeal Ordinance for an extension of time which may be granted by theCourt, except in the case of conviction, involving a sentence of death,under section 8 (1). This power, under section 8 (1), may be exercisedby any Judge of the Court. It cannot, therefore, be said that there wasany difficulty in the way of making such an application. Not only wasthat not done, but, ir. the period between August 12 and September 3,no further supplementary notice was filed. As I have said, the mattercropped up only in the course of argument. It may fairly be said thatthe application is belated.
In Rex v. Burke ', Counsel for the appellant at the outset had appliedto amend the notice of appeal by adding a further ground. This wasrefused after considering Rex v. Wyman and Another % in which theCourt wished it to be understood that substantial particulars of mis-direction must always be set out in the notice of appeal, and of Rex v.Cairns3 in which leave to add to the grounds of appeal was granted,as it was a capital case. Leave to amend the notice was also granted inRex v. Meade which was-also a capital case. In Rex v. Allen % one ofthe grounds for refusing an application .to include, in the applicationfor leave to appeal, a point of law, was that Counsel defending at thetrial had stated that there was no point of law. That is somewhatanalogous, by implication, to the present case, as it might fairly beassumed that, five grounds having been stated by Counsel, the chargeto the Jury was not open to further complaint. The present applicationwas formulated, at our request, as one for an extension of time within
3 20 Cr. App. R. 44.
* 2 Cr. App. R. 47.
43 X. L. R. 4G5.
13 Cr. App. R. 163.
5 1 Cr. App. R. IS.
460
Abdul Caffor v. Ahamed.
which to appeal as it seemed to us that the principles which should beapplied when considering an application of that nature are equallyapplicable to an application for leave to add a ground of appeal. InRex v. Rhodes 1 an application for extension of time, made five weeksafter conviction, was refused, the Lord Chief Justice observing that,while a short delay may be disregarded by the Court if it thinks fit, inthe case of a substantial interval of time—a month or more—-it mustnot be taken for granted that an extension of time will be allowed as amatter of course without satisfactory reasons. No reason has beenadvanced in the present case which appears to us in the least degreesatisfactory.
This is not a capital case, there was delay in applying for a copy of theproceedings, there was no application for extension of time, and, finally,although the charge to the Jury had been in Counsel’s hands for threeweeks, no supplementary notice setting out this particular ground wasfiled. For these reasons the application for leave to argue this ground isrefused.
Application refused.