THE KING v. PEIRIS APPUHAMY et al

095-NLR-NLR-V-43-THE-KING-v.-PEIRIS-APPUHAMY-et-al.pdf


412
1942
The King v. Peiris Appnhamy.
[Court of Criminal Appeal.]
Present: Howard C.J., Keuneman and Cannon JJ.
THE KING v. PEIRIS APPUHAMY et oL13—M. C. Dandagamuwa, 9,841.
Accomplice—Question of mixed fact and law for Jury—Duty of Judge to warnJury as to necessity of corroboration—To explain the law as to whatconstitutes corroboration—What association with crime constitutes aperson an accomplice—Criminal Procedure Code, ss. 244 and 245.
> 43 y. L.R. -. 3.
HOWARD C.J.—The King v. Peiris Appuhamy.413
The question whether a person is an accomplice is for the Jury todecide.
It is the duty of the Judge to direct the Jury as to what associationwith the crime would constitute a person an accomplice.
If a person is an accomplice it is the duty of the Judge to warn theJury that it would be unsafe to convict without corroboration and toexplain to them the law as to what constitutes corroboration.
Evidence in corroboration must be independent testimony whichaffects the accused by connecting or tending to connect him with thecrime.
A witness who merely assisted in the disposal of the dead body butwho did not take part in the perpetration of the crime is not an accom-plice.
The learned Judge was justified in the circumstances of the case incommenting on the failure of the accused to" offer an explanation oftheir conduct by giving evidence.
^~1ASE heard by a Judge and Jury before 1st Midland Circuit.
W. Obeyesekere for both accused, appellants, who are also applicantsin the application.
E. Cliitty, C.C., for the Crown.
June 8, 1942. Howard C.J.—
This is an appeal on a question of law and an application for leave,under section 4 (b) of the Criminal Appeal Ordinance against the convictionof the appellants on charges of murder. The first point taken byCounsel for the appellants was that it was erroneous on the part of thelearned Judge to leave the question of an accomplice as a question of factto the Jury. On page 42 of the charge the learned Judge stated asfollows: —
“ I ought to point out to you that a great deal will depend upon the viewyou take of the actual position of Aron Appuhamy in this case, whetherin your opinion he is an accomplice or not. That is the question foryou to consider, whether Aron Appuhamy was an accomplice or not—an accomplice, remember, in the murder, not in the disposal of the bodyof the man Jamis Appu.”
So, in view of this passage, there can be no doubt that the learned Judgeleft the question as to whether Aron was an accomplice as a question offact to be decided by the Jury. In support of his contention that thiswas a misdirection, Mr. Obeyesekere has cited the case of the QueenEmpress v. O'Hara*. In this case, the trial Judge charged the Jurythat they were not to convict upon the evidence of G., if satisfied that hewas an accomplice and uncorroborated, but coupled the direction with astrong expression of opinion that G. was not an accomplice.. It washeld that this constituted a misdirection in fact, though not in form,calculated seriously to prejudice the prisoner’s case. The judgment ofNorris J., who was the trial Judge and also sat as a member of the AppealTribunal, stated as follows:— _
“ A careful consideration of the arguments addressed to us hassatisfied me that I ought to have told the Jury that G. was an accom-plice, and there is no doubt in my mind that that misdirection musthave very seriously prejudiced the prisoner.”
43/30
1 J. L. R. 17 Cal- 042.
414
HOWARD C.J.—The King v. Peiris Appuhamy.
In the judgment of Petheram C.J., we find the following passage : —
“ Had the Jury not been told that, in the opinion of the Judge,G. was not an accomplice, it may well be that, having heard his evidenceas that of a person who had been in that character given a conditionalpardon under section 337, and who had been twice warned in theirhearing that the pardon was subject to revocation, they might, asasked to do by the Counsel for the prisoner, have so treated themin their own consideration of the case, and required corroborativeevidence, satisfying to themselves, of some of the material particularsof his evidence.”
This passage indicates that the misdirection arose in the trial Judgeexpressing his opinion that G. was not an accomplice. The trial Judgeshould have set out the facts with regard to his association with thecrime and conditional pardon so thaj; the Jury might have formed theirown opinion as to whether he was an accomplice. The passage citedfrom the judgment of Norris J. merely indicates that this Judge thoughthe should have expressed his opinion that G. was an accomplice insteadof stating that he was not one. This case, therefore, does not assist thecontention of Mr. Obeyesekere and, in fact, as far as it goes, it is authorityfor the proposition that the question as to whether a person is an accom-plice is one,for the Jury to decide. That, in fact, this is the law appears■from the following passage from the judgment of Isaacs L.C.J. in R. v.Charles Cratchley—
“ We have come to the conclusion that the second boy was not anaccomplice. There was in our view no evidence that he had a guiltyknowledge fit to be left to the Jury, though it is true that, if there wasany evidence of it, it was for the Jury to say whether he had a guiltyknowledge or not; consequently he was not an accomplice.”
Apart from the two cases I have cited, we have also come to the conclusionthat the learned Judge’s direction on this point was correct after aconsideration of sections 244 and 245 of the Criminal Procedure Code.Section 245 places on the Jury the burden of deciding questions of fact.Section 244 (1) (d) states that it is the duty of the Judge to decide whetherany question which arises is for himself or for the Jury. Sub-section (2>gives the Judge the right to express his opinion upon any question of factor any question of mixed law and fact. We are of opinion that thequestion as to whether Aron was an accomplice was one of mixed law andfact which was quite properly left to the Jury by the learned Judge underthe provisions of sections 244 and 245 of the Criminal Procedure Code.1
We have given careful consideration to the various other grounds raisedin the appellants ’ notice of appeal. We do not consider there is substancein any of them. Our attention was invited to contradictions in, theevidence of Aron. These contradictions were, however, before the Jury,who no doubt considered them and came to the conclusion that in spiteof them reliance could be placed on his evidence.' The question of theidentification of the deceased by a photograph y was immaterial if theevidence of Aron, was acceptable to the Jury. There was no evidenceon which the Jury could come to the conclusion that the appellants were
1 9 Cr. App. Rep. 233.
HOWARD C.J.—The King v. Peiris Appuhamy.
415
guilty of a lesser offence than murder. We think that the learned Judgequite properly commented on the failure of the appellants to offer anexplanation of their conduct by giving evidence. No case has beenmade in the proof of the assertion contained in the Notice of Appealthat the appellants did not have a fair trial. Apart from the groundsof appeal raised by Counsel for the appellants we have given carefulconsideration to one or two further matters which arise from the facts ofthis case. We think that it was not only the duty of the Judge to haveleft the question as to whether Aron was an accomplice to the Jurybut also to have directed them as to what association with the crimewould constitute him an accomplice. Further, if the Jury thoughthe was an accomplice, they should have been warned that it was unsafeto convict without corroboration and the law with regard to whatconstitutes corroboration should have been explained to them. It is alsorelevent to consider whether in fact there was corroboration. We have,therefore, been at pains to scrutinize the learned Judge’s charge with aview to seeing whether it dealt with these aspects of the case. Onpages 42-43 of the charge we find the following passage : —
“If you accept that evidence, that he had not taken any part in theattack upon the man, then is he an accomplice in regard to the offencewe are investigating, namely, the offence of murder ? There is nodoubt, as Crown Counsel admitted, that he is an accomplice in respectto another offence, namely, the offence of disposing of evidence inorder to screen an offender ; but that is not the^ offence we are investi-gating here. The offence we are inquiring into is the offence of murder,and if you believe the evidence of Aron Appuhamy, that he did nothingmore than sit some distance away, an unwilling spectator of what washappening, then can you say he was an accomplice ? But, Gentlemenof the Jury, perhaps in view of the fact that he admittedly took partin the disposal of the body of the man, if a man had been killed, youwill ask yourselves the question whether you can, beyond reasonabledoubt, accepting the evidence of Aron Appuhamy, that he took nomore, no greater part in this transaction than he says he did, whetherhe took no part in the actual attack upon the man. If, in your view,he was himself a party to the attack upon the man, which resultedin the death of tire man, and if he took part with the others in thefurtherance of the common intention of both, then, if that is your view,or if you have a reasonable doubt as to whether he took such a partyourselves, it would be safer for you to treat the evidence of AronAppuhamy as the evidence of an accomplice.”
We are of opinion that the learned Judge gave a correct disquisition ofthe law in regard to the manner in which the Jury should decide as towhether Aron was an accomplice. In this connection, our attention wasinvited to the case of Ramaswamy Gounden v. Emperor '. The caseagainst the appellant in this appeal depended entirely upon the evidenceof the first witness, who after the murder had assisted in the disposal of thebody. It was held by the majority of the Court that the witness was notan accomplice in the crime for which the accused was charged, inasmuch
' 1. L. R. 27 Mad. 272.
416
HOWARD C.J.—The King v. Peiris Appuhamy.
as he had not been concerned in the perpetration of the murder itself.Even assuming that after the murder had been committed the witnesshad assisted in removing the body to the pit and that he could have beencharged with concealment of the body under section 198 of the PenalCode that was an offence perfectly independent of the murder and thewitness could not rightly be held to be either a guilty associate with theaccused in the crime of murder, or liable to be-indicted with him jointly.The witness was, therefore, not an accomplice and the rule of practiceas to corroboration had no application to the case. It is difficult todistinguish the facts in the present case from those in the case I havecited. In these circumstances, it was open to the Jury to accept theevidence of Aron without applying the rule of practice as to corroboration.
The next question requiring consideration is whether if the Jurydeemed Aron to be an accomplice they were given the proper warning,that it was unsafe to convict without corroboration. The necessarywarning is to be found "on pages 43-44 of the charge, when the learnedJudge states as follows: —
“ The position then in law is this. You can, if you believe theevidence of an accomplice, regard him as an accomplice none the lessso implicitly that you feel you can act upon that evidence. You areentitled, to act upon the evidence and a conviction upon that evidenceis not illegal. But just as that is a rule of law, it is a rule of practicein all Courts for a Judge to caution jurors about the evidence of anaccomplice and to point out to them that it is unsafe to act. upon theevidence of an accomplice unless the evidence is corroborated in.material particulars. Once a Judge has drawn the attention of theJury to the fact that it is not safe to convict upon the evidence of anaccomplice unless it is corroborated, if the Jury after careful con-fsideration are prepared, notwithstanding the caution addressed tothem, by the Judge, to act upon the evidence of the accomplice, even ifit is not corroborated in material particulars, the Jury are quite freeto do that; but, it is always better to see whether the evidence of anaccomplice is corroborated,
“Therefore, Gentlemen of the Jury, one question which you have toconsider seriously is, in your opinion is Aron Appuhamy an accompliceor not an accomplice in regard to this offence of murder ? If he is notan accomplice, and if that is your opinion, you are entitled to act uponhis evidence even if it is not corroborated: but if he is an accomplice,you are nevertheless entitled to act upon his evidence if you believe itso implicitly as to feel that you are able to act upon his evidence,despite the caution I have addressed to you that it is unsafe- to actupon the evidence of an accomplice unless corroborated. , You areentitled to do that, but if you treat him as an accomplice and you sayto yourselves, ‘ We are not disposed to act upon his evidence, unlesshe is corroborated ’, then you will go on to examine the matters whichhave been put before you in order to see whether in these mattersyou can find corroboration in material particulars.”
The only points that remain for consideration are (a) whether thelearned Judge gave a proper direction to the Jury as to what constituted
HOWARD C.J.—The King v. Peiris Appuhamy.417
corroboration, and (b) whether there was in fact corroboration. Withregard to (a) 1 need only refer to page 45 of the charge, where the learnedJudeesays:—
' You must have corroboration which connects the accused personswith the crime and which brings the accused persons in contact withthe accomplice. ”
Alsc to a passage on page 55, where it is stated : —
" You will then go orf to see whether you have sufficient corroborationto satisfy you that these accused were in contact with Aron Appuhamythat night; and, secondly, whether they were connected with theoffence that night ”
What amounts in law to corroboration was given exhaustive considerationby the Court of Criminal Appeal in the case of R. v. Baskerville1 LordKeacung, in his judgment, stated as follows : —
•' We hold that evidence in corroboration must be independenttestimony which affects the accused by connecting or tending toccnnect him with the crime. In other words, it must be evidence whichimplicates him, that is, which confirms in some material particularr.: t only the evidence that the crime has been committed, but also thatthe prisoner committed it. ”
Later on in his judgment, Lord Reading says that the corroboration neednot be direct evidence that the accused committed the crime; it issufficient if.it is merely circumstantial evidence of his connection with thecrime. The learned Judge then states that a good instance of thisindirect evidence is to be found in Reg. v. Birkett In that case, theprisoner was indicted for receiving stolen sheep. The evidence consistedof the statement of an accomplice and to confirm it it was proved that aquantity of mutton, corresponding in size with the sheep stolen, was foundin the prisoner’s house. Patteson J. said : “ If the confirmation hadmerely gone to the extent of confirming the accomplice as to mattersconnected with himself only, it would not have been sufficientbut here we have a great deal more ; we have a quantity of mutton foundin the house in which the prisoner resides, and that I think is such aconfirmation of the accomplice’s evidence as I must leave to the Jury ”.
We are of opinion that the direction of the learned Judge that the Jurymust look for evidence that not only brought the accused into contactwith the accomplice but also connected them with the crime, compliedwith the requirements formulated in R. v. Baskerville (supra) and Reg. v.Birkett (supra).
I will conclude this judgment by a brief reference to the corroborativeevidence before the Jury. In this .connection, it is relevant to bear inrmnd the following passage from the 7th Edition of Wills on Circum-stantial Evidence, pp. 432-433 :—
“ If it be proved that a party charged with a crime has been placed incircumstances which commonly operate as inducements to commit the» {1916) 2 K. B. 668.- 8 C. & P. 732.
418HOWARD C.J.—The Kino v. Perns Appuhamy.
act in question—that he had so far yielded to the operation of thoseinducements as to have manifested the disposition to commit theparticular crime—that he has possessed the requisite means andopportunities of effecting the object of his wishes—that recently afterthe commission of the act he has become possessed of the fruits or otherconsequential advantages of the crime—if he be connected with tt^pcorpus delicti by any conclusive mechanical circumstances, as by theimpressions of his footsteps, or the discovery of any article of hisapparel or property at or near the scene of the crime—if there berelevent appearances of suspicion connected with his conduct, person,or dress and such as he might reasonably be presumed to be able,if innocent, to account for, but which, nevertheless, he cannot or willhot explain—if, being put upon his defence, recently after the crime,in circumstances raising an adverse presumption, he cannot showwhere he was at the time of its commission—if he attempts to get ridof the effect of those circumstances by false or incredible pretences,or- by endeavours to evade or pervert the course of justice—the con-currence of all or of many of such cogent facts, apparently inconsistentwith the supposition of his innocence, in the absence of facts leadingto a counter-presumption, reasonably and naturally leads to but oneconclusion—the moral certainty of his guilt; if not with the same kindof assurance as if he had been seen to commit the deed, as least with allthe assurance which the nature of the case and the vast majority ofhuman transactions admit. ”
We are of opinion that there was ample corroboration of Aron’s story.The fact that the first appellant was seen travelling in a cart requisitionedfor the disposal of the body of the deceased, in our opinion not onlyconfirms the accomplice as to matters connected with himself bu: alsoconnects the first appellant with the crime. Moreover, the appellants,although entitled to testify on their own behalf, failed to do so and explaintheir presence in the cart. In these circumstances, the Jury were entitledto draw an unfavourable conclusion, as was stated by Lord Ellenboroughin R. v. Lord Cochrane & Others1 in the following passage : —
“No person accused of crime is bound to offer any explanation ofhis conduct or of circumstances of suspicion which attach to him ;but, nevertheless, if he refuses to do so, where a strong prima jade casehas been made out, and when it is his own power to offer evidence,if such exist, in explanation of such suspicious circumstances whichwould show them to be fallacious and explicable consistently with hisinnocence, it is a reasonable and justifiable conclusion that he refrainsfrom doing so only from the conviction that the evidence so suppressedor not adduced would operate adversely to his interest. ”.
For the reasons I have given, the appeals and applications aredismissed.
Appeals dismissed..
Gurney's Rep. P 470.