083-NLR-NLR-V-42-THE-KING-v.-RAJAKARUNA.pdf
The Kina v. Rajakaruna.
■ 337
[Court of Criminal Appeal.]
1941Present: Howard C.J., Soertsz and Keuneman JJ.
THE KING v. RAJAKARUNA.15—M. C. Balapitiya, 39,829.
Charge—Right of Judge to redirect Jury on facts and law—Jury not kepttogether till final charge—Validity of verdict—Criminal Procedure Code,s. 246 (I) and 12).
Where a Judge is not disposed to accept the verdict of a Jury he isentitled to redirect them on the law as well as on the facts of the case.
The fact that the Jury left for their homes before the final charge doesnot invalidate the verdict.
T
HIS was an application lor leave to appeal from a conviction by aJudge and Jury before the Southern Circuit.
Gilbert Perera, for the applicant.—After the summing-up, Crown Counseldrew the attention of Court to a certain decision of the Court of CriminalAppeal. Thereupon the Judge recalled the Jury and charged themagain. The Jury retired but came back and asked for further directionsupon what was meant by self-defence and provocation. The Judgeexplained the law on those points. The jury retired and later brought averdict of 4 to 3. The Judge then intimated that he could not acceptthat verdict and recharged the Jury on the following day. The accusedwas finaUy convicted on a verdict of 5 to 2.
The presiding Judge acted improperly in recharging the Jury afterthey had brought their verdict of 4 to 3. The powers of the Judge onthat verdict were limited either-to direct the Jury to reconsider theirverdict under section 247 (2) and 248 (2) of the Criminal Procedure Codeor to discharge the Jury and order a new trial under sections 250 and 252.While asking the Jury to reconsider their verdict, the Judge may givefresh directions on a point of law which the Jury has not fully understood.See for example, 12 Criminal Law Journal 140 and 1 Criminal LawJournal 265. But there is not a single case where a recharge was made onthe facts, as in the present case. It was not open to the Judge to rechargethe Jury on the whole case. See Mukerji on Trial by Jury, p. 315 et seq.In the present case the Judge should have ordered a new trial.
E. H. T. Gunasekera, C.C., for the Crown.—The procedure followed bythe Judge can be justified under section 247 (2) of the Code. The onlyquestion now is whether the Judge was not entitled to give the furtherdirections which he gave. Counsel for the appellant admits that a Judgehas the right to give further directions on matters of law. He has drawna distinction between a fresh direction on matters of law and one onquestions of fact, but has referred to no authority. Rafat Sheikh v. KingEmperorhowever, is authority to the contrary. These is nothing inthe Code to prevent the Judge from supplementing his original charge tothe Jury.
[Keuneman J.—Was not the adjournment- till the following dayprejudicial to the accused ? See section 241 (1) of the Criminal ProcedureCode.]*
» {1933) A. I. R. Oalc 6i0,
333HOWARD C.J.—The King v. Rajakaruna
Under section 246, the Jury retire only after the summing-up. In thepresent case the summing-up was over only when the fresh directionswere completed.
Gilbert Perera, in reply.—Redirection may be given only on certainspecific points which the Jury have failed to understand. That was theposition in Rafat Sheikh v. King Emperor (supra) too.
JThe Jury should not have been allowed to separate during the intervalbetween the two verdicts.
Cur. adv. vult.
June 30, 1941. Howard C.J.—
In this case Mr. Perera has raised various grounds of appeal, but theonly one with any substance is whether the verdict of the Jury is invali-dated by the fact that after they had come into Court from their retiringroom divided four to three the learned Judge recharged them on thewhole case. In this connection I may say that the time for adjournmentfor the day had arrived and they went home and reassembled on thefollowing day. It had been argued by Mr. Perera that a Judge has nopower to recharge a Jury except on some matter of law. Cases havebeen cited from the Indian Courts in which Judges have been held entitledto give fresh directions to a Jury on a question of law. In this case theJudge recharged the Jury not only on questions of law but also onquestions of fact. We are of opinion that the same principle applies toredirections of questions of fact as it does on questions of law. It isimpossible to separate in this way the law from the facts. Any questionof law must be considered and dealt with' on directions given withreference to the facts. In coming to this conclusion we are fortified by acase which has been cited to us by Mr. Gunasekera. This was the caseof Rafat Sheikh v. King Emperor In that case it was held that where aJudge is not minded to accept what is obviously and admittedly aninconsistent verdict of the Jury he can make a further charge to the Jurywithout referring the case to the High Court for consideration. In hisjudgment in that case Costello J. referred to an extract from the judgmentof the Chief Justice in the case of Hamid Alt v. King Emperor. Thepassage was as follows:—“If he (the Judge trying the case) thought itfairer and clearer and simpler to re-charge the Jury on certain specificpoints and to tell them to go and get heads clear on the subject andgive a proper verdict; there is nothing in the Code against that. TheJudge put the matter in a much better position than it would have beenif he had endeavoured to cross-examine the Jury, which, as a matter offact, means cross-examination of the foreman It is true that in thiscase the Judge if he felt so disposed could have discharged the Jury andsummoned another Jury to try the case, but there is nothing in the Code*to prevent him from redirecting the Jury and asking them to retire andsee whether they could reach a verdict. There is nothing in the Codewhich prevented him from redirecting the Jury with regard to the factsand the law and there is no reason why the principle which was laid downin the Indian case which I cited should not apply to the facts of thepresent case. We therefore think that there is no real substance in thisground of appeal raised by Mr. Perera.
» (1933) A. I. R. Cede. 640.
Piyadasa v. Goonesinha.
339
My brother Keuneman has also raised another point as to whether theverdict is not invalidated by the fact that the Jury were not kept togetherduring the adjournment. Section 246(1) provides that after the
summing up the Jury may retire to consider their verdict. Sub-section (2)states that if the Jury retire they shall be committed to the charge of anofficer of the Court who shall first take an oath in the prescribed form.The third sub-section provides that except with the leave of the Judgeno person other than a member of the Jury shall speak to or hold com-munication with any member of such Jury. It is expressly providedthat these provisions shall apply after the summing-up. It cannot besaid, however, in this case that it was after the summing-up that theJury went to their homes. It might possibly be argued that it wasduring or in the middle of the summing-up, but whatever it was it wasnot after the summing-up. The fact that the Jury were sent to theirhomes does not therefore in any way invalidate their verdict.
For the reasons I have given the application is dismissed.
Application dismissed.