148-NLR-NLR-V-45-THE-KING-v.-PABLIS-et-al.pdf
KECTNEIVLAN J.—The King v. Pablis:
641
[Court of Criminal Appeal]
1994Present: Keuneman, de Kretser and Jayetileke JJ,THE KING v. PABL.IS et al.
M. C. Panadure, 29,466.
Murder—Opinion of trial Judge—Chargefo'r. acquittal—Reasonable and sub-
stantial doubt as to guilt of accused—Conviction set aside.
Where, in an indictment for murder, the presiding Judge fully explainedto the jury the points in favour of the accused and expressed in nouncertain terms that the evidence was insufficient to justify a conviction,
*Held, that the opinion of the presiding Judge was not by itself sufficientto set aside the conviction.
Where after a careful examination of the evidencethe Courtof
Criminal Appeal is of opinion that there is a reasonable and substantialamount of doubt as to the guilt of the accused, they are entitled tothe benefit of that doubt.
T
HIS was an appeal from a conviction on a certificate by the trial Judgeunder section 4 (b) of the Court of Criminal Appeal Ordinance.
R. L. Pereira, K.C. (with him Ian de Zoysa), for the first accused^.,appellant.—The verdict of the jury in this case is unreasonable. Theevidence relating to the identification of the accused is wholly unsatis-factory. The proceedings, further, show that the jury misunderstoodthe directions of the trial Judge.
N. Kumarasingham (with him A. C. Nadarajah), for the second, thirdand fourth accused, appellants.—There is reasonable and substantialamount of doubt as to the guilt of the appellants. They are, therefore,entitled .to be acquitted—R. v. Abeywickrema et al.1; R. v. MusthapaLtebbe2; R. v. Schrader3; R. v. Parker4; R. v. Scranton5.
Even if the first accused has been rightly convicted, the convictions ofsecond to fourth accused cannot be supported.The mere fact that they
were seen in .the company of the first accused is not sufficient evidence ofcommon intention—R. v. Jan Singho et al.6; R. v. Dingiri Appuhamy et al.7:R. v. Jayanhamy et al.8.
E. H. T. Gunasekata, G.C., for the Crown.—It was open to the jury toaccept and base their verdict on one or more of the three eye-witnesseseven if they had doubts as to the credibility of the witness Menchohamy.Even if this Court is of opinion that, the evidence raises a reasonabledoubt it does not follow that the verdict of the jury should be set asideunless it is found to be a perverse one—R. v. Andris Silva et al.9; R. v.Musthapa Lebbe {supra)
November 3, 1944. Keuneman J.—
The four accused were indicted for the murder of Mallika AchigeBrampy on January 27, 1944, at Weniwelkola. By a majority verdict of
Cur. adv. vult.
(1944) 44 N. L. R. 254.
(1943) 44 N. L. R. 505.
3 (1911) 6 Cr. App. R. 253.
(1911) 6 Or. App. R. 285.
15 Cr. App. R. 104 at 103.
« (1940) 41 N. L. R. 573.
(1943) 25 G. L. W. 77.
C. C. A. Minutes of Oct. 16, 1944 ■
8 (1940) 41 N. L. R. 433.
542
KLEUNtEMAN J.—The King v. Pablis.
five to two the jury found all four accused guilty of murder, but recom-mended the second, third and fourth accused for mercy on the groundthat they did not actually fire the shot. The case for the prosecutionwas that the first accused fired the fatal shot, and that the second, thirdand fourth accused were associated with the first accused and shared thecommon intention to kill the deceased.
The appeal comes before us on a certificate by the trial judge undersection 4 (f>) of the Court of Criminal Appeal Ordinance, No. 23 of 1938, thatit is a fit case for appeal on the following grounds: —
‘ Facts, in particular
the evidence of the three eye-witnesses as to identification' by the
light of a torch; and• r
the meagreness of the evidence from which it might be inferred
that the second, third and fourth accused were actuated with acommon intention. ’ ’
No exception has or can be taken by the appellants to the charge bythe trial Judge. In fact the trial Judge very fully explained the points-in favour of the accused and expressed in no uncertain terms his ownopinion that the evidence was not of such a kind as to justify a conviction.That, however, is not a sufficient ground for us to interfere in appeal,and we have, with the aid of counsel, carefully considered the facts forourselves.
The evidence for the prosecution was that the deceased was an oldman of about 70 years of age. On the night in question he had his mealabout 8.30 p.m. and sat on the cot in his verandah. He asked his wife,the witness Menehohamy, to fetch him a chew of betel, and his wifecame out to the. verandah carrying the betel and a bottle lamp. Therewas another bottle lamp lighted on the cot beside the deceased. Thewitness Davith, the son of the deceased, was seated on another cot at theother end of the same verandah, with an electric torch which he hadpicked up in his hand. The witness Thomas was inside the front roomin a line with the door. Suddenly a shot rang out, and it is fairly certainthat it was fired from immediately in front of the house, at a distance ofabout 37 feet from where the deceased was seated. As the shot wasfired Davith rushed on to the road flashing the torch he had, and Mencho-hamy and Thomas who had himself been hit by some of the pellets also-rushed out to the road. By the light of the torch all three witnesses sawthe first accused moving backwards lowering the gun, while the thirdaccused threw a long pole (later discovered to be a spear) at Davith.This spear fell on the road. As the third accused hurled the spear hesaid—“ I will eat you, you fellow!” The first and the third accused were-close to each other. The witnesses also saw the second and the fourthaccused about 17 feet away from the other two accused; second accusedhad a club but nothing was noticed in the hands of the fourth accused.All the accused then ran away.
I may add that the witnesses spoke to an alleged motive but this was-so ** flimsy.” that the trial Judge rightly directed the jury to “ put awayfrom their minds the question of motive”.
KEUNEMAN J.—The King v. Pablis.
543
It is quite clear that the principal question to be decided was that ofidentification, and the most important matter was whether Davith had atorch’ and flashed it at the moment of firing or so soon after as to permitthe three witnesses to identify' the four accused. It was not pretendedthat there was sufficient light to identify the accused without the aid of thetorch. The trial Judge concentrated attention on that point.
Davith himself stated and Thomas agreed that Davith had this torchfor about three years and had renewed the batteries from time to time.But the evidence relating to the torch raises many points of doubt.First of all, it is admitted by the witnesses for the prosecution thatcertain .neighbours came hurrying to the scene, and that one of them,Peirisf, actually accompanied Davith to the house of the headman.Davi.th said he took the torch on his way to the headman’s. But noneof these neighbours, not even Peiris, has been called or even put on theback of the indictment as a witness. Undoubtedly Davith did go to theheadman and make a statement about 9 p.m. The statement is asfollows as recorded by the headman : —-
“ On the 27th January 1944, about 9 p.m. complaint was made to meby Mallika Achige Davith Singho of Weniwelkola that his father MallikaAchige Brampy Appu was shot. He was on the bed. He fell on thatbed. Do not know whether he died. Pannilage Pabilis of Godi-gomuwa, do. Andy, do. William, Guruge Carolis alias Podda ran awayafter the shooting. The complainant mentioned the witnessesAmhettige Thomas Singho, Kurrupege Mechehamy. Explained to thecomplainant and asked him to set his signature.
Sgd. Davith Alwis.
Sgd. Charles Perera, V. H. 600.”
The point in favour of Davith’s evidence is that he mentioned thenames of the four accused. But it is important to remember that hedid not say which of the accused shot or had the gun.He did not
mention the episode of the throwing of the pole or spear. He did no.tmention the torch. Now Davith in his evidence at the trial maintainedthat he no.t only showed the torch to the headman but told the headmanthat he had identified the accused by the light of the torch. This wasflatly denied by the headman, and he is almost certainly speaking thetruth for if the torch had been produced before him he would have takenit into his possession. Further the headman has stated that when hereturned to the house of the deceased man he searched the neighbourhoodwith the aid of a chulu light and .that no torch was-produced to him eventhen. The headman also said he did not remember seeing anything inDavith’s hand when he came to his house. The Police arrived about
a.m. the next morning. About half an hour before they arrivedThomas handed the spear to him “ saying that i.t was picked up from theroad.” Nothing was said as to the spear having been thrown at anyone:It was only after the arrival of the Police that any mention was madecf the torch. In consequence of a statement then made by DavithInspector Van Sanden took charge of the torch.. The torch was thentested and it threw a powerful light.
544
KBTXNEMAN 3.—The King v. Pablis.
There has been considerable criticism of the story of the torch. Davithappears “ to have been over anxious to bring the torch to the noticeof the jury. Further it has been argued that it was unnatural for Davithto rush out to the road with the torch instead of going to the assistanceof his father. It is not possible to generalize as to how a man wouldreact to the unexpected firing of a gun. But there is a more fundamentalpoint, and that is the fact that the headman denied the story of Daviththat he had shown the torch .to the headman at the latter’s house. Ithink the jury ought to have accepted the evidence of the headmanwho was in no way discredited by counsel for the prosecution who called,him. That, and the failure to mention or produce the torch tiU after
a.m. were matters which should have raised a considerable d°ubtas to the truth of the story of Davith and also of the other two witnessesthat a torch was used on that occasion.
As regards the spear also the story is difficult to follow. According toThomas, he “ was holding the spear squatting on the ground and crying.”and the headman saw him in that position. The headman howeverdid not. corroborate that, and it is more than strange that Thomasshould have merely handed the spear over with no other comment thanthat he had found it on the road. Davith’s failure to mention thethrowing of the spear to the headman is also remarkable in view of thefact that Thomas said he informed Davith about his picking up thespear before Davith went off to the headman.
No doubt there is evidence that the witnesses were excited and full ofgrief, but the considerable interval of time before either the torch or thespear were brought to the notice of the authorities was a matter of primeimportance to the defence.j,
Other matters relevant to the decision of the ease which may raisedoubts as to the truthfulness of the witnesses may be briefly enumerated: —
It is argued that it is not natural for Davith to be holding on to the
torch at the psychological moment, and for him to flash thetorch in the direction from which the shot came.
As the trial Judge put it, Davith’s evidence is corroborated by
Thomas and Menehohamy "in a startling fashion. Theirevidence on material points is almost word for word.”
Thomas at any rate purported to have seen so distinctly that he
recognized the gun as being a single-barrelled gun.
It is argued .that it is unlikely that the accused would have remained
standing for a little time in the open when the torch was flashed.There is evidence that there was a fence and shrubs betweenthem and the road, and it was possible for them to take cover.
There are no doubt possible answers to some of the points made forthe defence, but in the mass these points are very substantial and shouldhave been fully considered by the jury. The jury in fact were absent for50 minutes, and were then sent for by the Judge who inquired whetherhe could help them further. The foreman of the jury then replied—“ Yes, my Lord, with reference to the evidence of the old woman (Mencho-hamy), the jurors are in doubt whether the woman could Have seen atthat distance.” The trial judge apparently thought this meant that the
KECK EM AN J .—The King v. Pablis.
645
whole jury were in doubt on that point, and informed them that if they,had a doubt on that point—as to whether Menchohamy was speaking thetruth,—-the whole case for the prosecution was tainted and the accusedwere entitled to the benefit of the doubt. The jury then retired and inten minutes returned a divided verdict of guilty. I think however thatit was possible that what the foreman meant was that there was a divisionoi opinion among the jurors as to whether Menchohamy could see so far.But even so it is singular that the jury should have taken up a pointwhich did not figure in the evidence and was not even mentioned by thetrial judge in his summing up. It leaves one with the uneasy feeling thatthe jury were concentrating on points not raised in the evidence butdiscovered by themselves, and this may have diverted their attentionfrom the vital matters in the evidence which had been put to them. Itis also possible that the jury misunderstood the Judge’s remark that thethree .witnesses gave their evidence " remarkably well ”. This was reallymade as a criticism and followed the comment that the corroboration was“ almost word for word ”. -It is possible that the jury took this tooliterally.
Ab regards common intention on the part of the second, third, and fourthaccused, there is strong reason to question the finding of the jury. Wehave already dealt with the allegation that the third accused threw thespear. As regards the second and the fourth accused nothing wasproved against them except that they were present- about 17 feet awayfrom the first accused, and that they ran away when the first and thethird accused did so. This in our opinion is insufficient to prove commonintention on the part of the second and the fourth accused, for undoubtedlythe area in which they were was used as a hunting ground at night bypeople in the neighbourhood.
In circumstances such as we have here we think there is authoritywhich entitles us to interfere with the verdict. In Rex v. Schrager1where the question was also one of identification, the Lord Chief Justicementioned the facts and said—
“ On the evidence of the prosecution the case against him was verydoubtful, and it did seem to the court that there was a reasonable andsubstantial amount of doubt as to the guilt of the appellant. Theconviction therefore could not stand, but it must not be supposed thatthe fact that the' judge disapproved of. the verdict of the jury wouldalone be sufficient to upset a conviction ”.
This case was followed- in Rex v. Parker3. That was also a case whereidentification played a main part. It was a charge of rape, and the girlwho was very respectable had been badly outraged. She later identifiedher alleged assailant in the street, and in her evidence adhered to heridentification very strongly. However she said that the assailant waswearing blue overalls at the time of the offence and at the trial it wasnot suggested that appellant wore or possessed any such overalls. TheHord Chief Justice described the case as one of very great difficultyand added— .
Her identification depended throughout on the blue overalls^and it is hardly possible she could have been mistaken in thinking that
1 6 C. A. R. 253.a 6 C. A. R. 265.
18-J. N. A 93349 (11/49)
546
WIjkrEWABDBNE J.—Kandasamy and Navaralnarajah
her assailant was so dressed. Appellant gave his right name andaddreBS when she spoke to him in the street and challenged prosecu-tion. There is therefore a sufficient doubt as to the accuracy of theverdict for us to give appellant the benefit of it. This was evidentlythe view formed by Pickford J. at the trial
See also Rex v. Scranton1 and Rex. v. Bradley2; Rex v. Abeywickreme*and Rex v. Mustapha Lebbe1
After a careful examination of the evidence in the present ease we areof opinion that there was a reasonable and substantial amount of doubtas to the guilt of the appellants and that the appellants were entitled tothe benefit of that doubt.r
We accordingly set aside the convictions of all the four accused and
acquit them.
Conviction set aside'.