070-NLR-NLR-V-47-THE-KING-v-.-PUNCHI-BANDA-et-al.pdf
The Ring v. Punch* Banda.
203
[CoiraT of Ortmttw-at. Appeal.]
1946 Present: Cannon J. (President), Jayetileke and de Silva JJ.1'Kk KING v. PUNCHT BANDA, et al.Applications 66-68—M. C. Kandy, 17,203.
Evidence—Statement to Magistrate, by accused, at preliminary stage of inquiry—Admissibility, at trial, against co-accused.
Criminal Procedure—Trial for murder—Severed accused represented by oneCounsel—Conflict of defences, during trial—Adjournment of trialdesirable.
In a prosecution for an indictable offence, a statement made by -anaccused to the Magistrate is relevant evidence against the co-accused if,at the trial, the former gives evidence reaffirming the statement he madeto the Magistrate.
Where, in a tried for murder, two or more accused are represented byone Counsel and, in the course of the trial, it is found, for the first time,that the defences of the accused conflict, the proper course for the Judgeto take is to adjourn the trial to enable the accused’s Counsel to reconsiderhis position.
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CANNON J.—The Ring v. Punchi Banda.
Per Cannon J.—•“ This seems an appropriate occasion to mention theduties of assigned Counsel when Counsel is assigned to represent two ormore accused in the same case whose defences conflict. We thin’: thatif the defences of such accused have conflicted at any stage, even thoughthe accused endeavour to reconcile them when they are in consultationwith assigned Counsel, nevertheless assigned Counsel should bring to thenotice of the Registrar of the Court the fact that the defences haveat some stage conflicted, in order that the Registrar may advise theJudge to have the accused separately represented.”
A
PPLICATIONS, by three accused, for leave to appeal against theirconvictions by a Judge and Jury.
H. Wanigatunge, for the first and second accused, applicants.
M.M. KumaraJculasingham, for the third accused, applicant.
T. S. Fernando, C.C., for the Crown.
May 14, 1946. Cannon J.—
The case for the Grown was that the three appellants went to a housein their village on December IS, 1944, which was inhabited by an elderlyman named Kira and a little girl aged seven, named Laisa, whose deathwas the subject of this trial; that they went there for the purpose of theftas Kira was reputed to be a miser and that when Kira offered resistancethey murdered him and, further, murdered the little girl in order thatshe should not be a witness against them. The Jury found all threeaccused guilty of murder. In considering the points raised an behalf ofthe appellants it is necessary to recount something of the events thatpreceded the trial and of the conduct of the trial. The accused werenot arrested until January 29, and on January 31, each expressed a wish tomake what has been called a “ confession ’ ’ to the Magistrate. The first andsecond accused’s so-called confession took the form of a total denial of anyknowledge of what had happened. The third accused alleged that theother two had murdered the little girl and that he, though one of theparty of "three which went to the house, was not a party to any killing ;that he went there merely to steal and did so under duress of the othertwo. Obviously, then, the defences of the first and second accused werein conflict with that of the third. At the trial, however, all three accusedwere represented by one Counsel, and the statements which the threeaceused had made to the Magistrate were tendered in evidence by theprosecution. The attitude of the defence to the evidence of thesestatements is shown by the cross-examination of the two Police Officers,who it was suggested had endeavoured to persuade each of the accusedto make a statement implicating the other two on the promise that if hedid.so he would be released, and, further, that the first and secondaccused declined to do so but the third accused gave way and signed astatement which was dictated to him by one of the Police Officers. Thecross-examination, therefore, shows that although their defences were inconflict before the trial, at the trial they were unified and in fact identical,the damaging statement by the third accused being accounted for by thesuggestion that it was a false statement made by him for promise ofreward. We are not deciding whether in making these defences the
CANNON J.—The King v. Punch* Banda.
205
accused were wisely adviBed. What we have to determine is whetherthey or any of them were prejudiced by what happened subsequentlyat the trial. At the conclusion of the Crown case the defence was openedby Counsel for the accused stating that the three accused intended tomake statements from the dock; and the first and second accused thereupondid so, both alleging that they had been asked by the Police to makestatements implicating the other two in return for their release. Whenit came to the third accused’s turn to make his statement, he is recordedto have said “ I wish to get into the witness-box and give evidence onaffirmation ”. He did so and the shorthand note, after recording a fewlentences of evidence, reads as follows :—“ {Note.—Mr. Gnanasekeramis not examining the witness.) At this stage—
Court to Mr. Gnanasekeram (Counsel for the accused): Do you wishhim to give evidence in this way ?
Mr. Gnanasekeram : He has taken me by surprise.
Court : It is very unusual for an accused who is appearing by Counselto take the car j out of his Counsel’s hands.
Mr. Gnanasekeram : As far as I am concerned, My Dord, he wantedto make a statement from the dock. I do not know the nature of theevidence he is going to give. I shall have to follow it.
Court to Mr. Wijemanne (Crown Counsel): What do you suggest ?
Crown Counsel: I do not know whether he can be restrained fromgiving evidence. He is at perfect liberty to give evidence.
The third accused then continued to give evidence and it wouldappear from the record that he examined himself. It is a very in-telligent statement in which he admits having made the statementto the Magistrate to which I have already referred and, further, headmitted that that statement was a true statement. The shorthandtranscript proceeds :—
Court to Mr. Gnanasekeram: You will have time to consider yourposition with regard to this accused, bearing in mind the fact that you'are defending all three of them. It is difficult to do so. During theadjournment you can consider what questions you wish to put to thisaceused.
The presiding Judge apparently was prompted to make this observa-tion because the nature of the third accused’s evidence was in contradic-tion of the nature of the defences which had been put forward up to thetime he went into the witness-box. On the next day the proceedingsopened as follows, according to the transcript:—
Court to Jury : Mr. Gnanasekeram informs me that the evidencegiven by the third accused yesterday afternoon came as a completesurprise to him and that he anticipated that the third accused wouldmake a statement from the dock more or less on the. lines as that madeby the first accused and the second accused. It is quite obvious,of course, that if Mr. Gnanasekeram had realised when he undertookthis defence that the third accused was going to adopt this attitude,then he could not possibly have appeared on behalf of all the accusedbecause their defences are irreconcilable—in other words, the thirdaccused has said something in the witness-box which implicates the
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CANNON J.—The King v. Punchi Banda.
first and second accused, and therefore Mr. Gnanasekeram has beenplaced in an extremely awkward position. In these circumstancesI have asked Mr. Carthigesu to undertake for the rest of the case thedefence of the third accused. Mr. Carthigesu appeared in the lowercourt and therefore is familiar with the facts of this case and no in-justice will be done to the third accused by his appearing for himinstead of Mr. Gnanasekeram. Mr. Gnanasekeram, on the other hand,will now be able to devote his attention solely to the conduct of thedefence of the first and second accused. I thought I would justexplain that to you. ”
From that stage Mr. Carthigesu conducted the defence on behalf ofthe third accused. The Jury, however, found all three accused guilty ofmurder.
For the first and second accused it is pointed out that the Judge omittedto give any direction to the Jury as to the relevance of the evidence ofthe statement which the third accused had made to the Magistrate,viz., that it should not be taken into account in considering the casesof the first and second accused; and Mr. Wanigatunge contends thatthat omission prejudiced the cases of the first and second accused. Thisomission may have been fatal to the conviction of the first and secondaccused but for the fact that the third accused gave evidence reaffirmingin effect the statement he had made to the Magistrate and that evidencewas, of course, evidence which the Jury could take into considerationagainst the first and second accused provided that the Judge gave thema proper direction on the question of corroboration, which in fact theJudge did. Therefore, as Mr. Fernando submits, the point in thesecircumstances becomes one merely of academical interest.
For tfie third accused it is submitted that he took the case out of thehands of his Counsel when he went into the witness-box and that fromthat time he was not represented by Counsel, who, it is pointed out,did not examine him, and Mr. Kumarakulasingham submits that inthus entering upon what was perhaps the most important part of hisdefence he was without the assistance of Counsel—contrary to the practiceof the Court which gives an accused person in a capital case the optionof having Counsel assigned to defend him. This submission dependson a question of fact, viz., whether or not the third accused was repre-sented when he gave evidence. We have given very careful considerationto that point. It will be noted that in the recorcbhis Counse1 said whenreplying to the Judge on the matter of the third accused giving evidence“ I shall have to follow it.”. This would suggest that he had not retiredfrom representing thfi third accused, but rather was going to conduct thecase to the best of his ability, having regard to what the third accused hadsaid. We agree with the submission of Mr. Fernando that it was notuntil after the third accused had completed his evidence-in-chief thathis Counsel had any idea of retiring from the case and we cannot holdthat because the third accused went into the' witness-box after hayingagreed to adopt the advice of his Counsel not to go into the witness-boxthat he thereby ceased to be represented by his Counsel. We are ofopinion, therefore, that he was represented by Mr. Gnanasekeram up tothe moment when Mr. Carthigesu took over. We do. however, think
HOWARD C.J.—-The King v. Fonseka.
207
that it would have been the better course for the Judge to have adjournedthe case when the third accused went into the witness-box to enable hisCounsel to re-consider his position, but we are of opinion that even hadthat course been followed the Jury could have come to no other conclusionin view of the amply adequate independent evidence implicating all threeaccused in the crime. The applications are therefore refused.
This seems an appropriate occasion to mention the duties of assignedCounsel when Counsel is assigned to represent two or more accused inthe same case whose defences conflict. We think that if the defencesof such accused have conflicted at any stage, even though the accusedendeavour to reconcile them when they are in consultation with assignedCounsel, nevertheless assigned Counsel should bring to the notice of theRegistrar of the Court the fact that the defences have at some stageconflicted, in order that the Registrar may advise the Judge to have theaccused separately represented.
Applications refused.