040-NLR-NLR-V-38-THE-KING-v.-SENEVIRATNE.pdf
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The King v. Seneviratne.
[In the Privy Council.]
1936 Present: Lord Maugham, Lord Roche, and Sir George Rankin.
THE KING v. SENEVIRATNE.
Misdirection to jury—Charge of murder—Circumstantial evidence and expertmedical evidence—Homicide or suicide—Expert evidence not entirelyconsistent with the theory of homicide—Duty of Judge—Proper directionto jury—Evidence of former statements by witnesses—Evidence Ordi-nance, ss. 154, 155, and 157—Burden of proof—Inspection of place ofoffence—Demonstration of relevant sounds and smells—CriminalProcedure Code, s. 238.
In a charge of murder based on circumstantial evidence the questionwas whether it was a case of homicide or suicide or misadventure. Themedical evidence was ambiguous in effect and did not show any pre-ponderance of opinion among the doctors that the physical conditionsapparent at the post-mortem were such as to be consistent only with thetheory of homicide or to point clearly in that direction. The learnedJudge directed the jury to accept either of the conflicting views putforward by the medical experts or to leave aside all the medical evidenceand to form their own opinion from the facts as to whether they pointedto homicide rather than suicide.
Held, that, as the medical evidence was unsatisfactory and there wasno other circumstantial evidence justifying a conviction, the only properdirection to the jury was that they must return a verdict of not guilty orthat they could not safely or properly find any other verdict.
Delivered by LORD ROCHE—The King v. Seneviratne.
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Evidence of former statements by a witness cannot be given withoutprevious cross-examination of the witness as to such statements.
The prosecution is not bound to call witnesses irrespective of consider-ations of number and of reliability.
Witnesses essential to the unfolding of the narrative on which theprosecution is based must be called by the prosecution, whether in theresult the effect of their testimony is for or against the case for theprosecution.
The principle laid down in Attygalle v. The King (1936 A. C. p. 338)that it is not the law of Ceylon that the burden is cast upon an accusedperson of proving that no crime has been committed, applied.
Where, at an inspection of the venue of the offence under section 238of the Criminal Procedure Code, a demonstration of relevant sights andsounds is made by a person who was not sworn as a witness,—
Held, that the proceedings were irregular and tended to divert the dueand orderly administration of the law into a new course, which may bedrawn into an evil precedent in future.
PPEAL. from a verdict and sentence passed by the Supreme Court.
H. I. P. Hallet, K.C. (with him S. Chapman), for appellant.
Sir D. B. Somervell, K.C., A. G.; L. M- de Silva, K.C.; and KenelmPreedy, for the Crown.
July 29, 1936. Delivered by Lord Roche—
This is an appeal by special leave from a verdict and sentence given andpassed in the Supreme Court of the Island of Ceylon on June 14, 1934.The appellant was charged with having murdered his wife on October 15,1933, and after a trial lasting 21 days he was found guilty by a majorityof five to two of the jury, one of the five in the majority recommendinghim to mercy. Sentence of death was passed but this sentence wascommuted to one of rigorous imprisonment for life.
The main ground of the appeal is that on the evidence a verdict ofguilty could not properly or safely be found and that the jury ought tohave been so directed and that in these circumstances such grave injusticehad been done as to require the interference of His Majesty. Theappellant also complained of certain specific matters in the conduct of thetrial as causing or contributing to the miscarriage of justice. Suchmatters were : that a very large amount of hearsay evidence was admittedand was used*as evidence of fact ; that the learned Judge misconstruedsection 106 of the Ceylon Ordinance, No. 14 of 1895, relating to the law ofevidence and in consequence gave an erroneous direction to the jury asto the onus of proof ; that the learned Judge used language to the juryin his charge which was calculated to put undue pressure upon them andto prejudice the accused. Complaint was also made, though this was notone of the specific reasons assigned for the allowance of the appeal; thatafter the evidence was concluded the hearing was reopened and furtherheard at the appellant’s house, where the death of his wife occurred, in amanner that was entirely irregular and was not permitted by law.
There is no uncertainty as to the principle upon which this Board actsin the matter of the review of a criminal case. The statement of the
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principle most useful for th^purpose of this case appears in the judgmentdelivered by Lord Summer in the case of Ibrahim v. The King-Emperor and is as follows : —
“ Leave to appeal is not granted ‘ except where some clear departurefrom the requirements of justice’ exists:Riel v. Reg. (1855, 10 App. Cas.
675) ; nor unless ‘ by a disregard of the forms of legal process, or by someviolation of the principles of natural justice or otherwise, substantial andgrave injustice has been done’; Dillet’s Case, (1887)12 App. Cas. 459).
It is true that these are cases of applications for special leave to appeal,but the Board has repeatedly treated applications for leave to appeal andthe hearing of criminal appeals as being upon the same footing : Kiel’s Case ;Ex parte Deeming (1882, A. C. 422). The Board cannot give special leave toappeal where the grounds suggested could not sustain the appeal itself;and, consequently, it cannot allow an appeal on grounds that would not havesufficed for the grant of permission to bring it. Misdirection, as such, evenirregularity as such, will not suffice: Ex parte Macrea (1893, A. C. 346).There must be something which, in the particular case, deprives the accusedof the substance of a fair trial and the protection of the law, or which, ingeneral, tends to divert the due and orderly administration of the lawinto a new course, which may be drawn into an evil precedent in future :Reg. v. Bertrand (1867, L. R. I. P. C. 520) ”.
Whether mischiefs within the scope of the above description haveoccurred in the present case is a question which depends for its solutionupon an examination of the facts and evidence in the case and upon thecourse of the trial. The facts and their Lordships’ observations thereonare as follows ; —
The appellant is a Cambridge graduate who was called to the bar in1919. His wife in 1933 was about 38 years old. She was a cousin of theappellant and they had been married in 1923. They had one child, a boyaged 9, called Terence, another child having died soon after birth. Thedeceased, though short in stature (5 feet 3 inches) is described as huge.For some years husband and wife had not got on well together, constantquarrels arising out of various questions, including questions as toproperty, whether they should live in a rented house, and minor matters.A number of letters found after the death of the deceased amongst herbelongings and purporting to be written to the appellant in 1932, showthat the deceased was making accusations against the appellant in respectof a discharged servant girl, and of marital neglect and indicate that thedeceased had become somewhat abnormally unhappy and was puttinginto writing expressions of unhappiness and of hope that she would notlive long; with more than one threat of ending her own life. When shewas angry with her husband she was in the habit of shutting herself up inher room and at times of taking no food. On the other hand it was inevidence that the appellant, though not infrequently quarrelling with hiswife and not attentive to her wishes, had never been seen by anyone tothreaten his wife with any form of physical violence. Further, there wasa substantial body of oral evidence to the effect that the deceased hadbeen threatening suicide, and it is stated by two witnesses that some sixweeks before her death she had discussed suicide by chloroform with arelation, Mr. Charles Seneviratne.
‘ (1914) A. C. 599 al p. 614.
Delivered by LORD ROCHE—The King v. Seneviratne.
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On the day before Her death a Mr. and Mrs. de Saram had come todinner, and the deceased was said to have become angry when she wastold that the appellant had taken the boy Terence with him to the houseof a Mrs. Francis Seneviratne. According to the statement of theappellant before the Police Magistrate, he had a conversation with hiswife after the visitors had left in the course of which she said that hewould repent his action.
The arrangements at Duff House, the appellant’s residence, relevant tothe night of 14th-15th October, 1933, are not in dispute. The house wasone storied and in it the deceased slept in a room together with her personalservant maid Alpina, and in a room, which opened off this roomi Terenceslept and his nurse Mabel Joseph. A bathroom and lavatory opened offeach of these two rooms. Both in front and behind and also on the eastside of the bungalow were verandahs and a number of poultry runssurrounded the house on all sides. The deceased’s bed lay lengthwisealong a wall and in her room were a couple of teapoys, an almirab, an ironsafe and a wash stand. The evidence is that these rooms made a self-contained suite and that at night the doors giving access to these tworooms from other parts of the house were locked so that no one couldhave access thereto. The appellant had his bedroom apart in a suite ofrooms at the back of the bungalow on the other side, and he wouldproceed most directly by the back verandah if he was minded to go fromhis own rooms to those of his wife. There was the evidence of a maleservant called Banda to the effect that when on Sunday, October 15, hegot up at 6 a.m. he found the doors closed as he had left them on theprevious night. The evidence of Alpina as to what happened during thenight was that the deceased wakened her twice, once to close the shuttersbecause it was raining and another time when the deceased was seen to bedrinking some water.
As to Sunday, October 15, Alpina’s evidence was that she woke at6 a.m., saw the deceased sleeping, went to the bathroom, and when she cameback, found that the lady had turned over on her side, with her head on onepillow and another pillow at her side near to the wall ; that the lady wasawake but neither of them spoke ; that Alpina, leaving the door ajar andhaving dressed, went to do some cooking in a kitchen at the back of thehouse towards the western side ; that 15 or 20 minutes from the timewhen she had got up, Seelas, a servant boy of 15, came to her and toldher that her mistress wanted her. The chauffeur Perera came into thekitchen at the same time and said the same. Alpina said she thenwashed her hands and went without hurry to her mistress’s room, followedby Seelas, who was going to his pantry ; that she then saw her lady lyingacross the bed, that is to say not in a recumbent or sleeping position butout of bed in the sense that she was lying across it with her head towardsthe wall and legs and feet hanging over the outer edge of the bed ; that asshe entered the room, she saw the appellant coming in from the child’snursery ; that she noticed a smell which she describes as poisonous andoily ; that the accused went to the bed, commenced fanning his wife witha book and sent her (Alpina) for brandy and afterwards on repeatederrands for hot bottles, which he applied to his wife; also that he
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attempted artificial respiration. She also said that there was a handker-chief on the bed, about a foot square in size, near to the lady’s right hand.This handkerchief she said she put with some soiled linen on to thedressing-table after the doctor had come and she knew her mistress wasdead. It appears to have gone to the laundry and nothing further isknown about it. A small green smelling salts bottle, marked P 4, wason the teapoy upon which the deceased had kept her books. The stopperwas out and it was empty. Alpina first saw it on October 16, whenshe had to clear the teapoy for some purpose, and put the books aside.She does not remember seeing such a bottle on the dressing-table. Onthe 16th she took the bottle and put it on a chair, on which she put thebooks. This is the bottle which, it was suggested, might have been filledwith chloroform from some other container, and which the deceased mighthave used if. she administered chloroform to herself.
The evidence of the nurse, Mabel Joseph, aged 21 was that she got upat 6 and left for church about 6.30, having seen the lady lying in her bedwith her hand to her head.
Seelas, the boy of 15 who spoke to Alpina about her mistress wantingher, said that he got up at 6 and that he saw the appellant and the servantMartin feeding the fowls on the back verandah and heard them talkingabout the fowls. When in the pantry he says he heard some noise, notvery loud, other noises from the fowls occurring at the same time, whichseemed to him to come from the direction of the deceased’s room. Hesays he went to Alpina and told her of this in the kitchen, and that thechauffeur Perera was there at the time, that he went back with Alpinato go to his pantry, and that later he assisted Alpina to bring hot waterbottles to the lady. He says it was not possible for the appellant to goto the lady’s room without his being seen by the witness. Banda, aged18, who is Alpina’s brother, says he was sweeping the outer verandahwhen the appellant came out and told him to take tv/o Sunday papersthat morning, that the appellant went to the front verandah and camethrough the hall to the back verandah to feed the fowls. Banda wasoccupied with sweeping the verandahs until the car went off to fetchMrs. Bandaranayake, and if his evidence is true he must have seen theappellant if the appellant went to his wife’s room at the material time.
Perera, aged 38, the driver, says he got up about 6.30 and was washinghimself in his room when he heard a noise and that he went to tell Alpinaand then went back to his room. Afterwards Simon the cook told himto fetch Mrs. Bandaranayake, that he went with Simon in the car to bringthis lady, that Simon did not tell him to fetch Dr. Paul also until theywere on the return journey. He went back with the lady to fetchDr. Paul and brought him about 7.30.
Simon, the cook, aged 26, says that he was in the kitchen, and that hehad washed when he heard a noise and saw Alpina going to the lady’sroom, that he followed and saw the appellant fanning his wife and wastold first to go on a cycle and then afterwards with the motor car to fetchMrs. Bandaranayake and the doctor.
Martin, aged 14, was giving food to the fowls. He says the appellantcame from his room along the back verandah, that the witness went to'.he kitchen and went back and the appellant had reached the back
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verandah. The appellant was finding fault with the witness for givingxice and water to the chickens as distinct from the ducklings, and wasengaged in picking out certain of the chickens. Martin speaks to seeingthe appellant on the back verandah just before Alpina and Seelas went tothe lady’s room.
It is plain that this evidence) if believed, makes it impossible to supposethat the appellant was with the deceased in the room at the time sheuttered the cry, and the learned Judge treated it as obvious that if theevidence of these witnesses were believed, the appellant must be acquittedas having established an alibi.
The story of the appellant himself in a statement made at an early stageof the proceedings was that he was on the verandah where the chickenswere when he heard a groan, that he thought the noise was made byTerence, so went to the child’s* room first. The explanation which he issaid to have given at the time for going to the child’s room first is that hethought Terence might have got his head stuck fast between the rails ofhis cot, and he thought the noise which he heard might have been dueto this.
The case for the prosecution thus depended upon the Crown being ableto displace the evidence of the servants. To this end in addition to thesuggestion that the servants would be easily induced to try to exoneratethe appellant there was adduced the evidence of relatives who had goneto the house on the day of the death and afterwards, and had had conver-sations with the servants about the occurrences of the morning of the 15th.By Ceylon Ordinance No. 14 of 1895, section 145 (2), proof of previousstatements to contradict witnesses is provided for. A very considerablebody of evidence of this kind was given that is to say of oral statementssaid to have been made by servants in contradiction of evidence given bythem in so far as it assisted the appellant. Much of this evidence ofprevious statements was uncertain and varying and in no case does anyservant seem to have made admissions so as to bring the evidence givenin Court into accord with their supposed statements. Therefore at mostthe evidence of alibi would be weakened or destroyed. There would stillremain proved by the evidence circumstances of improbability, tendingto cast doubt on the suggestion that with the child sleeping in the nextroom, a number of servants going about their ordinary work in adjacentrooms and verandahs, the appellant) almost immediately after the nursehad left for church, had gone into his wife’s room and proceeded toadminister chloroform in such a manner as to permit of her so completelyaltering her position in bed and of uttering a cry and dying immediatelyafterwards. If he did this and at the same time managed to leave theroom and to come back again before Alpina reached the lady's room, hismovements were extraordinary.
Dr. S C. Paul’s evidence was that he arrived at 7.30 and that when hearrived, the appellant left the room. Dr. Paul found that the womanwas dead and had probably been dead since about 6.30. He appearsthereafter to have examined the room and finding a bottle of aspirintablets, asked the accused about them. In addition to telling the doctorhow he had heard the noise from his wife’s room and how he thought that
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the boy had put his head between the rails of his cot, the appellant, inanswer to the doctor’s question, said that his wife had the night beforecomplained of headache, and he had given her the bottle of aspirin nearlyfull. It appears that the bottle if full, would have contained 25 aspirins,and in the bottle there actually were nine remaining. AccordinglyDr. Paul thought that death was probably due to an overdose of aspirin,and that the marks which he had noticed on the face of the deceased werecaused by rubbing of brandy and application of hot water bottles to theface. Dr. Paul was not content to certify death in the ordinary coursebut telephoned to the coroner and gave information to the Police and toMr. Leo de Alwis, the brother of the deceased. On learning from thePolice and Coroner that they did not suspect foul play or propose to takeany proceedings, he gave a certificate that afternoon according to whichdeath was due to syncope or heart failure.
Comment was made by the Crown upon the suspicious conduct of theappellant in that though there must have been some smell of chloroformif he entered the room immediately after the cry, and although it wouldappear that his wife had died very soon afterwards, the appellant at notime mentioned the smell of chloroform to Dr. S. C. Paul on his arrival.
Dr. Paul’s son, Dr. Milroy Paul, in the afternoon injected formalin intothe body by way of embalming or preserving it, and on the 16th thefuneral took place. Qn the evening, however, of the 15th; whileDr. Milroy Paul was talking to his father, the question of the marks onthe face of the deceased was discussed by them. Dr. Milroy Paul statedhis opinion that the marks must be due to chloroform. The deceased’sbrother, Mr. de Alwis, not being satisfied that his sister had died fromnatural causes and apparently at first adopting the view that she had beendriven to suicide took steps after a day or two to instigate the authoritiesto action, with the result that the body was exhumed and a post-mortemwas held upon it on November 7. The salient features of the post-mortemfindings were much discussed in the medical evidence. It may be takento be common ground that aspirin was not found in the body, that theface marks were most probably attributable to chloroform and that excepton the face there were no marks whatever on the body of any significance.A slight bruising on the insides of the arms might have been caused in thecourse of the movements made to attempt artificial respiration.
It is now necessary to examine the medical evidence. It should beobserved that the doctors could not properly state their opinions as towhether the death was due to murder, suicide or accident ; that was aquestion for the jury. Apart from evidence as to what they saw on anexamination of the body, the function of the doctors was confined togiving expert opinions as to the effects of chloroform on a human body,including the marks of burning which chloroform may occasion, andas to the immediate cause of death and other matters of that nature. Dr.
S.C. Paul was in a special position for he was the family doctor and hadattended the deceased on two confinements, and he as already statedsaw the deceased at 7.30 a.m. at Duff House and interviewed the appel-lant. The main points on which expert evidence was given were, first,whether the death was due to aspirin poisoning or to chloroform, secondly,
Delivered by LORD ROCHE—The King v. Seneviratne.
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whether it was due to asphyxia or syncope, thirdly, whether the markson the face were such as would be caused by burns from chloroform,fourthly, whether pressure on the face would be necessary to cause suchbums, fifthly, as to the behaviour of persons during the administrationof chloroform, e.g., as regards struggling, shouts or other cries and so forth.It may be mentioned here that evidence of a very inconclusive characterwas given on this last point, inconclusive because not one of these witnesseshad heard any of the sounds coming from the room of the deceased, andall they had to guide them were the very different descriptions of thesesounds given by the Cingalese witnesses who heard them. In these cir-cumstances their Lordships do not think it necessary to summarize theexpert evidence as to these sounds ; but they must observe that anytheory as to the cause of death must take into account the fact that criesor sounds apparently coming from the deceased were heard an extremelyShort time before Alpina entered her room and found her lying insensible.The conclusion that the death was due to homicide must thereforeinvolve the idea that the murderer had discontinued the means whichhe must obviously have employed to prevent calls for assistance and haddone this just before causing insensibility ; and the cries or sounds musthave emanated (on the footing of homicide) from a partially suffocatedwoman.
The expert evidence was taken as conclusively establishing that thedeath was not due to aspirin. Further is it reasonably clear that thedirect cause of death might be the same if due to the administration ofchloroform vapour either by the deceased or by another person, and thecontest of conflicting opinions as to whether the signs observable on thepost-mortem examination pointed to asphyxia or to cardiac syncope or toasphyxia with secondary syncope was not of first importance. It wasapparently supposed that asphyxia would take longer to produce, andbe more likely to require an agent external to the deceased to bring itabout; but the supposition itself was not at all clearly established. Itmust also be remembered that none of the doctors had any experience ofthe changes which might take place in a formalin-injected body buriedunderground for twenty-four days in the climate of Ceylon.
It seems desirable to summarize the material expert evidence. Theevidence of Dr. W. C. Hill was to the effect that death was due to asphyxiawhich he explained as meaning respiration being prevented and sufficientoxygen not coming in. There might also, he said, have been secondarysyncope. The marks on the face were consistent with burns from chloro-form. Dr. G. Cook stated that chloroform in a bottle or an ampoulewhich had been opened five years before would be useless. He hadattended the deceased about eight years before in her confinement as ananaesthetist and she was “ susceptible to chloroform ”. Dr. S. C. Paulwho was FJR.C.S. and Doctor of Medicine (Madras) and who as statedhad been the medical attendant of the deceased for many years, testifiedthat she had some symptoms of diabetes and also had a skin diseasecalled Tina Nigrantes a sort of fungus on the face, neck and body.When he saw the body at 7.30 a.m. on October 15, there was a slightdiscoloration of the face on the right side including the lips and just below
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them, tip of the nose and the eyelids but not on the chin. The face wasplacid and calm. The eyes were not protruding, there were no injuriesto the tongue, no paleness, no lividity of nails, finger tips or lips. Hethought she might have taken something, but the suggestion of chloroformdid not then occur to him. At that time he thought that brandy andhot water bottles (which the appellant said he had used) might haveproduced the bums. He was present at the post-mortem. The markswere then more visible on both sides of the face. He then did not doubtthat the death was due to chloroform. In his experience chloroformburns might be caused without pressure. He had on an average 2,000cases a year of the administration of chloroform at his hospital and therewere five or six cases of bums every year. If it was a case of suicidewhether a handkerchief saturated with chloroform remained on her face ornot death would have occurred within two or three minutes. In ten minu-tes or so the smell would have gone. (That is of course in the atmosphereof Ceylon.) He agreed with several statements in the text books as tothe great difficulty of causing death by the administration of chloroformby force (he cited the works of Taylor and Webster). He agreed with astatement in Webster (p. 706):“ It is probable however that no authentic
case is on record in which chloroform has been successfully used on asleeping person for criminal purposes. Cases of suicide by inhalation arerare though some are reported ”. He testified that the deceased was arobust woman. One of his remarks was that if a third person was apply-ing a handkerchief or some like object soaked in chloroform to causedeath the natural impulse would be to close the mouth to prevent scream-ing and the burns would then be more on the lips and in the region of themouth than elsewhere. He thought the deceased died of syncope andnot of asphyxia.
Dr. T. S. Nair, an L.R.C.P. & S. (Edinburgh) and Faculty of Physi-cians (Glasgow), was present at the post-mortem. He held a strongopinion that death was caused by asphyxia. The marks could have beencaused by pressure with some fluid irritant. He alone of all the doctorssaid that the signs he saw at the post-mortem pointed to smotherin'- buthe added that he could only say that the marks were consistent withsmothering. He added that he had seen no evidence of chloroform. Helooked for bruises or marks of violence on the body but could not findthem. He thought the marks on the face indicated that pressure hadbeen used. He agreed that round the mouth, chin and lower lips therewas no blister or burn.
Dr. Milroy Paul, the son of Dr. S. C. Paul, was an F.R.C.S. (England),
M.R.C.P. (London), and M.D. (London), and he embalmed the body onOctober 15 by an injection of formalin into the veins. He noticed themarks on the face. He thought on reflection that they were due tochloroform and so informed his father. He was present at the post-mortem. Death in his opinion was not due to syncope pure and simple.It was at least partly due to asphyxia. He was clear that it was not acase of asphyxia caused by simple smothering, for the signs in such a casewere quite different. He gave elaborate evidence as to the marks and statedthat they could be caused by chloroform without pressure and gave aninstance of a very recent case under his own observation. He found no
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burns on the lips except a drip on the left side and no burns on the bridgeof the nose. This, in his opinion, indicated absence of pressure on thoseparts. He also agreed that it was very difficult to administer chloroformwhen a person was asleep. He would expect such a person to awake andshout out. “Even under operation a patient struggles and two or threepersons are kept to hold him down.” There were no bruises and noscratches.
Dr. J. S. de Silva, an M.B. and Master of Surgery (Aberdeen), was thesenior anaesthetist at the General Hospital (Colombo). He had anunrivalled experience in the giving of anaesthetics, for he had administeredthem in 25,000 cases; originally he used chloroform alone and morerecently chloroform followed by ether. He had had only one death andthat was of a patient in a moribund condition, and he had had no casesof burns from chloroform—a very remarkable testimony to his skill. Hewas present at the post-mortem. He said the death was not caused byasphyxia basing his opinion upon the absence of the external and internalsigns of it, and he cited various text books. He thought the death wasdue to syncope caused by the inhalation of chloroform. He did not seehow chloroform could be used on another person to cause death withouttouching the ridge of the nose, and the sides of the nostrils. A homicide,he said, would naturally soak the centre of the lint, or pad or handker-chief. He had made experiments as to burning with chloroform and saidyou could get burning with and without pressure. He said it was nextto impossible to anaesthetize a person single-handed, and on an unwiningperson he would not attempt it. He insisted on the absence of signs ofviolence or of any resistance offered by the deceased. There could be nodoubt that the view of this witness was very definitely that the indicationswere either inconsistent with homicide or at any rate were strongly againstit.
Dr. R. L. Spittel, FJt.C.S. (England), was not present at the post-mortem, but had read the report issued by Dr. Nair. He thought,judging from the report, that the cause of death was secondary syncopepreceded by asphyxia and due to the administration of chloroform. Heagreed that some skins were more susceptible than others. He held theview that it required superhuman determination for a person to saturatea handkerchief with chloroform and press it down on his or her face untildeath ensued. There were recorded instances of such suicides; theywere “ baffling ”. He would expect a person to whom chloroform wasgoing to be administered to struggle violently. He had made some ex-periments with chloroform burns and found he got bums if there waspressure on the handkerchief and none if there was not; but the value ofthese experiments would depend very greatly on the degree of concentra-tion of the chloroform used, and in re-examination he said that in oneexperiment he used a two p.c. concentration and there was no evidence asto the concentration in other cases.
Dr. Karunaratne, an M.D. of London, was in Government service as apathologist. He had had a brilliant career as a student in London. He hadpersonally done between 2,000 and 3,000 post-mortems m Ceylon, and hewas present at the post-mortem on the deceased. There were signs that
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asphyxia went on for some time before the heart failed, and assuming th1|tchloroform was used he would attribute death to chloroform, i.e., t(*respiratory failure associated with secondary syncope. As regards thequestion of suicide or murder he said that the deceased being a well-builtlady would have struggled if chloroform was being administered againsther will and one would expect to find bruises and scratches in such a case ;on the other hand it emerges from his evidence as a whole that he thoughthomicide was a more probable cause of death than suicide because of thegreat difficulty of a would-be suicide keeping the chloroform in contactwith the face, since by unconscious action the person would take it off.
Such being the nature and effect of the evidence the further course ofthe trial may be shortly stated. All the witnesses were called by theprosecution. Fifty-four witnesses having been mentioned on the backof the indictment, 52 witnesses were called and two tendered but notexamined. The statement of the appellant in the Police Court on Feb-ruary 10, 1934, was put in in accordance with the law but the appellantdid not elect to give evidence in his own defence. Evidence having beentaken from May 14 to June 8, the Judge and jury with the accused andCounsel on both sides went on the latter date to the scene of the occurrence,namely, Duff House. The servant witnesses were there and werequestioned further and at length presumably by the Judge and by nobodyelse. A certain Dr. Peiris was also present and took some part in theproceedings. He does not seem to have been at any time called as awitness or sworn. Experiments were conducted by pouring chloroformon a handkerchief to see how long the smell would remain, and by makingnoises at one place to discover how loud they would sound at anotherplace.
The learned Judge summed up on June 13 and 14, in a very long andcareful charge, and the jury were absent for five hours. They broughtin a verdict by the minimum majority of five to two, one of the fiverecommending the appellant to mercy.
The learned Judge, in the course of his summing up, when dealing withthe question whether the death was due to homicide or suicide, told thejury that they should view the evidence under the four heads of : motive,opportunity, means and conduct. He laid before them the fact that theletters show a motive for suicide or a motive for taking an overdose ofchloroform' to frighten the appellant. He also said that the case wouldbe the first of its kind, apparently, in the British Empire, wheremurder had been attempted by chloroform, and that the appellant wouldhave taken a great risk of the victim screaming.
As regards opportunity, he told them that if they believed Martin,Banda and Seelas, opportunity was absent. On the other hand theaccused had opportunity in the sense that he was up and that he was inthe same house. As regards means, the only evidence in the case wassupplied by the appellant himself who had stated that some 21 monthsbefore he had bought an ampoule of chloroform in connection with anoperation on the leg of a buffalo at his estate in Chilaw : that it had notbeen used for this purpose and had been brought home and had beenhanded to his wife.
Delivered by LORD ROCHE—The King v. Seneviratne.
219
Under the head of conduct, the learned Judge invited the jury toconsider the conduct of the appellant during “ the faint ”, and after“the faint”, when Dr. Paul came, and later, including such matters aswhether the accused did not guess that his wife had died, whether he didnot think it necessary to make a fuss about it or whether he really wasattempting to revive his wife, and whether his leaving the room could bereasonably explained. He put to them also whether the conduct of theaccused in telling the doctor about the aspirin was not suspicious in viewof the fact that the medical evidence had disclosed that the lady could nothave taken any aspirin, the view of the learned Judge on this point beingthat unless the deceased had thrpwn away a number of tablets it cannothave been true that the bottle was full as the appellant had said it was.
As regards the medical evidence, he told the jury that all the doctorswere agreed that chloroform was the cause of death, but that the doctorswere divided into two groups, those who thought that the death wascaused by syncope and those who thought that it was caused by asphyxiaand syncope, or simply by smothering as Dr. Nair had suggested. Hetold them that except for Dr. S. C. Paul and Dr. de Silva, the otherdoctors were of the opinion that death was due to secondary syncopewith which there were concurrent asphyxial signs and he put it to themwhether or not they would accept ..the proposition that there wereasphyxial signs which must have taken some minutes to produce. Heput the evidence about the burns on the face to the jury and the contro-versy between the doctors as to whether they must have been caused bypressure. After discussing the medical evidence he said : —
“ These problems are set by doctors. If you cannot make up your ownmind from the doctors’ evidence, it is still your duty to come to a conclusionon your own observations in this case. Could the burns of that kind becaused by a mere handkerchief by putting it in that position, or must pressurehave been used ? If pressure was used, could not the lady herself haveused pressure when she wanted to go off. Accused says in his statementthat she was in the habit of inducing sleep by chloroform …. Makeup your mind one way or the other and see whether it corroborates theprosecution story or the case for the defence, whether it was suicide or deathby misadventure ”.
Upon a review of the charge of the learned Judge as a whole, theirLordships do not find that it was calculated to bring before the minds ofthe jury the essentials of the case in respect of these circumstances : (1)that the only evidence as to where the accused was at or before the timeof the death was in his favour or if the evidence were disbelieved anddisregarded there was no evidence of his presence in his wife’s room atthe material time ; (2) that there was particularly strong evidence pointingto a tendency or inclination on the part of the lady to commit suicide.This point was mentioned more than once, but as no more than balancingthe motive for murder. This is unsatisfactory because assuming thatthere was such a balance as regards motives for suicide and murder yetmore than motive was disclosed by the evidence.. There was disclosed,as has been said above, a tendency towards suicide in the deceased. Notendency towards violence or murder i£>ghe accused was even suggested.(3) That the medical evidence was completely ambiguous in its effect,and did not show any preponderance of opinion among the doctors that
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the physical conditions apparent at the post mortem were such as to beconsistent only with the hypothesis of homicide or to point clearly in thatdirection. In considering the weight which a jury could properly attachto this medical evidence it is important to observe that the question wasnot whether they were justified in preferring the opinions of those doctorswho thought that the appearance of the body pointed to the applicationof external force rather than to the application by a suicide of a handker-chief soaked with chloroform, but rather whether the evidence of themedical experts as a whole pointed so clearly in the direction of homicidethat the evidence of the three servants that the appellant was elsewherethan in the room of the deceased, must be rejected as untrue. Expertevidence to have that effect must be clear and decisive. Their Lordshipsare unable to take the view that the jury was properly directed on thisimportant aspect of the case ; they were left to infer that they were atliberty to accept either of the views put forward by the medical witnessesconflicting as they were, and even to put aside all the medical evidenceand to form their own opinion from the facts as to whether they pointedto homicide rather than to suicide. In the opinion of their Lordshipsthe expert evidence was so conflicting, where it was not hesitating anddoubtful, that the learned Judge should not have invited the jury onmatters involving medical knowledge and skill to come to a conclu-sion for themselves to which the medical men could not point the wayeither with certainty or with even an approach to agreement amongstthemselves.
It is apparent that this general' tendency of the summing up was tolead the jury to think that in effect they might convict the accused mainlyif not entirely on the view they formed of his conduct. Many of thematters discussed under this head seem to their Lordships to be mostuncertain in their effect and unreliable as a guide to a conclusion. Therewere points against the appellant. There were others in his favour.The greater number were merely ambiguous. It has always to beremembered that as the evidence showed the appellant was in danger,even if suicide were found to be the cause of death, of incurring at leastmoral blame, and it was quite consistent with innocence of murder thathe should prefer misadventure to be deemed to be the cause of death.Still if there had been other evidence of weight their Lordships do notdoubt that a jury might properly have taken into account these mattersof conduct. But in this case at the end of the evidence the result wasthat there was no direct evidence justifying a conviction and for reasonsalready given there was no medical or other circumstantial evidencejustifying a conviction; and to arrive at an adverse verdict on thestrength of opinions formed as to the conduct of the accused was, theirLordships think, to act upon the merest scintilla of evidence and to beimpermissible.
On these facts the advice proper to be tendered to His Majesty seemsto their Lordships to be no doubtful matter. The submission of theAttorney-General was well founded that it is not for this Board to interferebecause its conclusion as to guilt or innocence might differ from that of thejury. But in the view of their Lordships, there are here no grounds on the
Delivered by LCj>RD ROCHE—The King v. Seneviratne.221
evidence taken as a whole, upon which any tribunal could properly as amatter of legitimate inference, arrive at a conclusion that the appellantwas guilty and any conclusion on the available materials would be, and is,mere conjecture or guess, which are not, in law or justice, permissiblegrounds on which to base a verdict. The only proper direction to thejury in these circumstances was that they must return a verdict of notguilty or that they could not safely or properly find any other verdict.The direction was, as has been seen, quite other than this, and the verdict,in the opinion of their Lordships, cannot stand.
Having regard to this conclusion on the main issue in the appeal, it isstrictly unnecessary to consider <jhe other points raised, but in the circum-stances of the case; and having regard to the general importance of someof the matters debated at the Bar, their Lordships propose to deal shortlywith these points also.
As to the matter of hearsay evidence: it has been already observed,that witnesses who gave evidence favourable to the appellant wereextensively cross-examined as to other and previous oral statements.Such procedure is with the leave of the Judge permissible under sections154 and 155 of the Ordinance (Law of Evidence) 14 of 1895, and it is to bepresumed that such leave was obtained. In other cases, as for example,in the case of the maid Alpina whose good faith does not seem to havebeen questioned by the Crown, evidence of what she had said was givenapparently without previous cross-examination of the witness as to suchstatements. This is both undesirable and not permitted by the abovesections and it could not be and was not suggested that section 157 of thesame Ordinance applied to make the further hearsay evidence admissibleas corroboration. It is said that the state of things above described arosebecause of a supposed obligation on the prosecution to call every availablewitness on the principle laid down in such a case as Ram Ranjan Raj v.The King Emperor to the effect that all available eye witnesses shouldbe called by the prosecution even though, as in the case cited, their nameswere on the list of defence witnesses. Their Lordships do not desire tolay down any rules to fetter discretion on a matter such as this which is sodependent on the particular circumstances qf each case. Still less dothey desire to discourage the utmost candour and fairness on the part ofthose conducting prosecutions ; but at the same time they cannot,speaking generally, approve of an idea that a prosecution must callwitnesses irrespective of considerations of number and of reliability, orthat a prosecution ought to discharge the functions both of prosecutionand defence. If it does so confusion is very apt to result, and never is itmore likely to result than if the prosecution calls witnesses and thenproceeds almost automatically to discredit them by cross-examination.Witnesses essential to the unfolding of the narrative on which the prose-cution is based, must, of course, be called by the prosecution, whether inthe result the effect of their testimony is for or against the case for theprosecution. Thus, in. the present case, the maid Alpina and Dr. S. C.Paul were indispensable Crown witn^gses. As to some of the otherwitnesses, there might have been both less confusion and a fairer trial if,
11. L. B. 42 Cal. 422.
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Delivered by LORD ROCHE—The King «?. Seneviratne.
though their names were on the indictment, they had been put into thebox to be questioned as to other than formal matters by the defendingCounsel. As the trial was conducted the result was unhappy. The jury•was warned more than once in the Judge’s charge that evidence ofprevious statements of a witness not admitted by the witness to havebeen made and not adopted by him in his evidence in Court was notevidence of fact. But how ineffective is such a warning when there ispresent a very extensive mass of hearsay ''evidence, is shown by whathappened here. Not only did medical and other witnesses assume to befacts matters of which there was merely such hearsay evidence and thenproceed to found conclusions upon them, ^ but the learned Judge himselfin his charge, through forgetfulness, more than once fell into the sameerror. In these circumstances the appellant’s complaint under this head,seems to their Lordships to be established in fact.
As to section 106 of the Evidence Ordinance (No. 14 of 1895): thatsection provides as follows : —“ When any fact is especially within theknowledge of any person the burden of proving that fact is upon him”.The learned Judge, who tried the present case, held a view as to thatsection which led him to give directions to juries, one of which is inquestion here, and another of which has been already considered anddisapproved by this Board in a reported judgment (see Attygalle v. TheKing1). That judgment had not, of course, been delivered when thecharge was given to the jury in the present case, and the material passages•of the charges in Attygalle’s case and this case, though not in identicallanguage, are substantially of the $ame tenour. Accordingly the directiongiven in this case is open to the objection which their Lordships explainedin the judgment in Attygalle’s case. That explanation need not berepeated. It is quite right to say that the learned Judge in the presentcase in the course of his very able charge to the jury explained generallythat the onus was on the Crown to establish guilt. But the passage inthe charge under examination seems nevertheless to be open to veryserious objection. It is not primarily or at all a general comment, whichwould be and was quite admissible, on the fact that the appellant was notcalled to give evidence. Nor was it a direction that any specific namedfact was one which fell within the section with the result that the onus ofproving that fact was upon the appellant. It was a direction as to factsgenerally, and therefore it was particularly unfortunate that the relevantpassage in the charge should have been expressed thus : “ He has got toexplain …. In the'‘'absence of explanation, the only inference isthat he is guilty ”. Its tendency would be to lead the jury to supposethat if anything was unexplained which they thought the appellant couldexplain, they not only might but must find him guilty. In a very difficultand quite exceptionally mysterious case such as this, the area of theunexplained was extensive, and how much the appellant himself couldexplain depended on where he was at material times, and indeed, on thevery matter at issue in the trial, namely, his guilt or innocence. One thingis quite clear, that this case and Attygalle’s case are wide apart in onerespect. In Attygalle’s case this .^ard did not interfere because, owingto clear evidence of guilt free from all connection with the irregularity
1 {1936) A. C. 33S.
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Delivered by IjORD ROCHE—The King v. Seneviratne.
complained of, the irregularity caused no injustice. Here the case evenas left to the jury admittedly hung suspended in a wavering balance,and no one can say what tipped the scale against the appellant.
The matter of undue pressure on the jury can be shortly dealt with.In the course of his charge the learned Judge is reported to have said this :“ . . . . the verdict, whether it is a conviction or an acquittal, Ihope it will be unanimous, owing to the serious and grave nature of thecase, but if you cannot agree please remember that I have got the fullpower to ask you to reconsider your verdict, but four to three means an.unacceptable verdict. That means you have to go through the trial again.I hope you will not have this knisfortune ”. It was said that this meantand the jury would understand, that if they did not agree, they wouldhave to try the case afresh. Their Lordships are satisfied that the learnedJudge can have had no intention of threatening the jury with such a fateand must, as the Attorney-General said, have been referring to a possiblenecessity for a further direction from him and for a new and prolongeddeliberation. Their Lordships also recognize othat in this case, as often,the shorthand note is not in all respects either complete or accurate ;but the form the note takes in this passage seems to indicate that theshorthand writer understood the language in the sense complained of andthe jury may unfortunately have dohe the same.
There remains the matter of the proceedings at Duff House onJune 8, 1934. Section 238 of the Criminal Procedure Code (No. 15 of1898) provides for a view by the juryHand lays down definite and strictconditions for its conduct. Section 165 of the Evidence Ordinanceprovides for the Judge asking questions at any time of any witness.The proceedings on June 8, 1934, seem to have been a combination ofa view and a further hearing with the introduction of some featurespermitted by neither procedure, such as the performance of an experi-ment with chloroform by a Dr. Pieris, who does not appear to havebeen sworn as a witness, the Judge and the foreman of the jurybeing present with Dr. Pieris in a room and the rest of the jury beingsomewhere else. The jurors seem also to have been divided for thepurpose of other experiments in sight and sound and to have been askedquestions as to the impressions produced on their senses. Their Lord-ships have no desire to limit the proper exercise of discretion or to saythat no view by a jury can include an inspection or demonstration ofrelevant sounds or smells ; but they feel behind to record their viewthat there were features in the proceedings of June 8 which were irregularin themselves and unnecessary for the administration of justice. TheirLordships do not find it necessary to consider whether any injusticeresulted in this particular case, but they regard proceedings so conductedas tending, in the words used in Ibrahim’s case “ to divert the due andorderly administration of the law into a new course which may ,be drawninto an evil precedent in future.”
I
In these circumstances even had their Lordships taken a different viewon the main point in the case, and had thought that there was evidencewhich justified the learned Judge in leaving the whole case to the jury
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Delivered by LORD ROCHE—The King & Seneviratne.
as one where they might, if they thought fit, properly find a verdict of.guilty, their Lordships would feel impelled to say that, particularly inrespect of the mistaken use made of the hearsay evidence, and in respectof the error arising upon section 106 of the Evidence Ordinance, suchmischiefs attended this hearing as to bring the case into the categorywhere the interference of His Majesty on the advice of this Board isnecessary.>
For these reasons their Lordships have humbly advised His Majestythat the appeal should be allowed and the conviction and sentencequashed.
Conviction quashed.