036-NLR-NLR-V-51-THE-KING-v.-MARSHALL-et-al.pdf
DTA8 J.—The King v. Marshall
157
[Court of Criminal Appeal.]
Present: Dias J. (President), Nagalingam and Gratlaen JJ.THE KING *. MARSHALL el al.
Applications 173-176.
S. C. 28—M. C. Walasmulla, 1,269.
Court of Criminal Appeal—Alibi—Abetment of murder—Intention to assist offender—
Essentials of abetment—Non direction—Penal Code—Sections 102, 296.
An alibi ia not an exception to criminal liability, like a pl«a of privatedefence or grave and sudden provocation. An alibi is nothing more than-anevidentiary feet, which, like other facts relied on by an accused, must be weighedin the scale against the case for the prosecution. If sufficient doubt is croatedin the minds of the jury as to whether the accused was present at the scene attlio time the offonco was committed, then, the prosecution has not establishedits case beyond reasonable doubt, and the accused is entitled to bo acquitted.Rex v. Chandrasckcra (1942) 44 N. L. It. at p. 126, and Rex v. Fernando (1947)46 N. L. R. <U p. 251, applied.
The jury found the .second accused guilty of murder and the first, fourthand seventh accusod guilty of abetment of murder. Tho facts were that oquarrel having arisen, the first, fourth and seventh accused were holding thedeceased man and dragging him along for eomo purpose of their own. Thesecond accused who was some distance bohind. taking advantage of thedefenceless position of the doceasod, rushed up from behind and struck thedeceased from behind causing a fatal injury.
Held, that in order to convict the first, fourth and seventh accusod of abetmenttheir mere presence with the intention of giving aid to the principal offender wasnot enough. Thero must also be the doing of something, or the illegal omissionto do something, in order to facilitate tho commission of the offonco by theprincipal offender.
Reid further, that the aid given by an alleged abettor must be “ intentional ”and, where tho offonco abetted is murder, the aid must be “ murderouslyintentional aid Furthermore, tho faoility or aid afforded by him to tho doerof the act must ho such ns wns essontial for tho commission of the crime abetted.
jA-PPLICATIONS for leave to apjieal from certain convictions in atrial before a Judge and Jury.
A. Hayley, K.C., with M. Ii. A. Aziz and K. J. P. Rajakaruna, forthe first, second, fourth, and seventh accused, appellants.
H. A. Wijemanne, Croton Counsel, for the Crown.
August 27, 1948. Dias J.—
At the close of the argument we intimated to learned counsel that wewere of the opinion that the conviction of the second accused should beaffirmed, while the conviction of the first, fourth, and seventh accusedshould be set aside. We intimated we would give our reasons later.
The indictment charged eight- persons with being members of anunlawful assembly, the common object of which was to cause hurt toS. Jamis and S. Dionis—section 140 of the Penal Code ; with the offence
DIAS 3.—The King v. Marshal!
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of rioting—section 144 ; and with murdering S. Jamis—sections 296 andand the Penal Code. Count 4 of the indictment charged the secondaccused alone with committing the murder of S. Jamis under section 296of the Penal Code, and count 5 charged the first, fourth, and seventhaccused with abetting the first accused to commit the-murder of Jamis“ which said offence was committed in consequence of such abetment ”under sections 296 and 102 of the Penal Code.
The Jury acquitted all the accused under the unlawful assembly counts1 to 3. They convicted the second accused under count 4, and the first,fourth, and seventh accused of abetment under count f>.
The facts as found by the Jury indicate that on October 2, 1947, S.Deonis and his father, the deceased »S. Jamis, went to the boutique ofElias Appuhamy. They had tea at the boutique and the deceasedhaving purchased some dried fish, the two started to go towards Hakmana,Neither of them was armed. On the way a quarrel arose between thesixth accused and Deonis. The other accused who were on the roadjoined in. They surrounded the father and son and began to assaultthem. Thereupon, Don Carolis and Vidane Appu intervened and rescuedDeonis and took him back to the boutique of Elias Appuhamy. Theythen returned to extricate the deceased. At that time, the first, fourth,and seventh accused were holding the deceased man and dragging himalong. The first accused was holding the deceased by his right arm,the fourth accused by his left arm and the seventh accused was graspingthe hair of the deceased. Then the second accused, who was some distanceaway, ruahed up from behind, ran up with a katty and struck the deceaseda blow which proved fatal. Thereupon the first, fourth, and seventhaccused let go of the deceased and dispersed.
The motive for the original quarrel between the sixth accused andDeonis is not very clear. About ten days prior to this incident a landdispute between the deceased man and his people and a woman calledLucyhamy had been settled by the headman. The deceased and his sonbelong to the goi-gama community. Lucyhamy is the mother-in-law ofthe seventh accused. Deonis however says that there had beendispleasure between his people and the huwu people over the possession ofthis land. There is evidence that the seventh accused had been citedby Lucyhamy as her witness in various criminal cases about this land,but he gave no evidence. There is also evidence that Lucyhamy hadcomo armed with a katty to the garden of the deceased and had a quarrelwith the deceased’s daughter.
The medical evidence proves that the injury inflicted by the firstaccused was a penetrating cut 13 inches long from the point of the leftshoulder downwards to the abdomen, cutting through seven ribs, openinginto the chest oavity and slicing the heart in two. Having regard to thecircumstances under which that injury was inflicted and its nature, wethink there can be no doubt as to the intention with which it was inflicted.
The defence of the second accused was an alibi. According to him,at the time the deceased man was injured he was in the copra shed ofPremasiri and he only reached the scene after the murder had beencommitted. He called Premasiri to support him. The Jury rejectedthat defence.
DIAS J.—The King v, Marshall
159
Various grounds have been urged on behalf of the second accused.It was submitted that the learned trial Judge has not adequately dealtwith the case of the second accused, and that his defence was not fairlyleft to the Jury. We are of opinion that the case both for and againstthe second accused was left to the Jury by the learned Judge. Mr. FT ay leyparticularly complained of the following passage in the summing-upin regard to the manner in which the learned Judge dealt with the alibiof the second accused :
“ Well gentlemen, as regards alibis, I had better read to you some-thing from that great writer whom I quoted earlier. Tt is much betterthan my expressing it in my own words :
‘ What had you for supper 1—But if in speaking of a supper givenon an important or recent occasion, six persons, all supposed to bepresent, give a different bill of fare, the contrariety affords evidencepretty satisfactory, though but of the circumstantial kind, that atleast some of them were not there. The most usual application ofthis is in detecting fabricated alibis. These seldom succeed if thewitnesses are skilfully cross-examined out of the hearing of each,especially as Courts are aware that a false alibi is a favourite defencewith guilty persons ’
Well gentlemen, that is a# regards alibis, but of course you will testthe alibi set out by each person on its own merits.”
An alibi is not an exception to criminal liability like a plea of privatedefence or grave and sudden provocation. An alibi is nothing morethan an evidentiary fact, which like other facts relied on by an accused'must be weighed in the scale against the case for the prosecution. Tn acase where an alibi is pleaded, if the prisoner succeeds thereby in creatinga sufficient doubt in the minds of the Jury as to whether he was presentat the scene at the time the offence was committed, then the prosecutionhas not established its case beyond all reasonable doubt, and the accusedis entitled to be acquitted—Rex v. Chandrasekera1 and Rex r. Fernando 2.Although the learned Judge did not deal with the alibi in this way, astudy of the evidence shows that no miscarriage of justice resultedthereby. There are contradictions between the evidence of the secondaccused and his witness Premasiri which may have induced the Juryto reject the alibi. In regard to the case against the second accusedthere was ample evidence before the Jury, which, if believed, justifiedthe verdict which they returned. We therefore think the conviction ofthe second accused is justified and we dismiss his application.
In dealing with the question of abetment under count 5 of the indict-ment, the learned Judg;' said :
“ A person abets by aiding when by any act or illegal omission—Iwill leave the second portion out—abets by aiding when any act isdone prior to or at the time of the commission of the act be does any-thing to facilitate, and does in fact facilitate, the commission thereof ;
1 (1947) 48 N. L. R. at p. 251.
(1942) 44 X. L. R. at p. 126.
DIAS J.—The King v. Marshall
H»U
either prior to or at the time of the commission of the act he does any*thing in order to facilitate the commission of that aot and therebyhe facilitates the commission of the act; intention should be to aidthe commission of a crime. A mere giving of an aid will not makean act an abetment of an offence. If the person who gave the aid didnot know that an offence was being committed or contemplated; forexample, A and B get married, A’s wife is living. The persons who aremerely present at the celebration of the marriage and are not awarethat A is already married, are not abettors. A priest who knowinglyofficiated at a bigamous marriage was held to have intentionally aided.Mere presence at the commission of a crime does not amount to anabetment, unless there is a presence of a party and tho presence isintended to have the effect of giving aid. If a person accompaniesanother and is aware that the other is about to commit an offence anddirectly encourages him in the act, he may be said lo aid or facilitatethe commission of the offence.
If you have three people taking hold of a man and leading him like asacrificial lamb to a place as counsel stated and there another mancuts him with a katty, then what is the inference you draw ? Counselsays it may be, the three persons took Jamis to the mara tree to givehim a slap—the three persons would be the first, fourth, and seventhaccused. That is a matter for you. That is the abetment undercount 5.”
We are of opinion that this direction wa3 inadequate and tended to confusethe Jury in tho light of the facts of this case. The learned Judge pointedout that the mere presence of the alleged abettor at the scene of theoffence at the time the principal offender committed the offence does notamount to abetment unless such presence was intended to have the effectof giving aid. In our opinion that is an inadequate direction. Explanation?> to section 100 defines what is meant by aiding the doing of an act—
‘ ‘ Whoever either prior to or at the time of the commission of an offence,rims anything in order to facilitate the commission of that offence, andthereby facilitates the commission thereof ”—is said “ to aid tho doing ofthat act It will, therefore, be seen that mere presence with theintention of giving aid to the principal offender is not enough. Theremust also be the doing of something, or the illegal omission to do something “ in order to facilitate the commission of the offence In thisconnection we would refer to the case of Wijeyratne v. Menon* whichlays down that the abetment must be complete apart from the merepresence of the abettor. It is necessary first to establish the circumstanceswhich constitute abetment, so that if absent, he would have been liableto be punished as an abettor. Furthermore, the indictment stated thatthe offence of the second accused was committed " in consequence of theabetment” by the first, fourth, and fifth accused. The explanation tosection 102 of the Penal Code says: “ An act is said to be committedin consequence of abetment ” when it is “ committed with the aid whichconstitutes the abetment ”. We cannot see how on the facts of this caseit can be said that the conduct of these accused in holding the deceased
' (1947) iff N. L. R. at p. /«•$.
DIAS J.—The King v. MnmhaU
161
and dragging him for some purpose of their own, amounts to aid intention-ally given to the second accused to facilitate him to murder the deceased.This aspect of the matter was not put to the Jury, and amounts to non-direction.
The aid given by an abettor must be “ intentional aid When thecharge is one of abetment of murder, in order to justify a capital sentence,the intentional aid must be a murderously intentional aid. It was laiddown in Rex v. Kadirgaman1 that the intention of an abettor must bepresumed from the nature and effect of the facility given by him to thedoer of the act. Not only was the Jury not directed on these points,but we are unable to hold a presumption of a murderous intention can bedrawn against the first, fourth, and seventh accused on the proven facts.The principle is that in order to make a person an abettor, the facility oraid afforded by him to the doer of the act must be auch os was essentialfor the commission of the crime abetted. This is a question of fact forthe Jury and must depend on the oircumstances of each case—Amara-singhe v- Silva
There are several cases in our law reports which illustrate theseprinciples. It is only necessary to cite one of them. In Rex v. Kadir.gaman 3 the facts established that B held C round his body while A hit Con the head with an iron rod. From the nature and facility given by B toA, bis intention to aid A in the assault on C was presumed. The facts ofthe present case are distinguishable, because there is no evidence at all toshow that the act of the first, fourth, and seventh accused in holding thedeceased and dragging him along the road was intentional aid, or was anintentional facility given by them to the second accused who came upfrom behind unknown to them in order to murder the deceased.
We are of opinion that the direction “ If you have three people takinghold of a man and leading him like a sacrificial lamb to a place as counselstated, and there another man cuts him with a katty, then what is theinference von draw ? Counsel says it may be the three tookJ&mis …. to give him a slap …. That is abetmentunder count 5 ” is unfortunate, inasmuch as it might create in the mindsof a lay Jury the impression that where three men drag a man for somepurpose of their own, and another taking advantage of that situationutilises that opportunity to indict a fatal wound, the only permissibleinference is that the three men who held the deceased did so with theobject of giving intentional aid to the murderer. The facts of this casedo not warrant such an inference. The learned Judge did not tell theJury that the evidence of the alleged abetment must be consistent onlywith the guilt of the accused and inconsistent with any reasonablehypothesis of their innocence. He did not tell them that the prisonersshould have the benefit of any reasonable doubt on this point. We thinkthat at the close of the case for the prosecution, there was sufficientjustification for the learned Judge to rule as a matter of law that,assuming all the facta of the ease for the prosecution are true, there was *
' {1940) 41 N. L. R. at p. 535-536.«(1944) 45 N. 1. R. at p. 526.
* (1940) 41R. L. R. 534.
1C2
Ebert Silva Bus Co., Ltd. v. High Level Hoad Bus Co., Ltd.
insufficient evidence in regard to abetment to warrant the Judge fromwithdrawing the cases of the first, fourth, and seventh accused from theJury. In these circumstances their convictions cannot stand.
In view of the decision we have reached, it is unnecessary to considerthe application of the seventh accused to lead further evidence in thisCourt.
We set aside the conviction and sentences imposed on the first, fourth,and seventh accused. The conviction and sentence passed on the secondaccused are affirmed.
Convictions of first, fourth, and seventh accused set aside.
Conviction of second accused affirmed.