022-NLR-NLR-V-51-THE-KING-v.-SUGATHADASA-et-al.pdf
fPhe King r. Sugathadasn
93
[Court of Criminal Appbal]
1949 Present: Wijeyewarden# C.J. (President), Caneker&tne J. andGnnasekara J.THE KING v. SUGATHADASA et a1.s. a. 88—M. C. Colombo Souik, 13,792
Court of Criminal Appeal—Chantder of accused—Adverse newspaper reportpending trial—f^egal effect—Assigned Counsel—Right of aroused toconduct his own defence.
The five accused-appellants were found guilty of murder. Whiletheir trial was pending a newspaper published a report tltat certainprisoners returning from Hulftadorp had introduced explosives into theWelikada Prison and that they were parties to a conspiracy to breakjail, using oxploeives for the purpose. A juryman reading the nowepaporreport would have concluded that the appellants were the personsreferred to in the report. At least one member of the jury had read thereport while the trial was pending and it was not unlikely that otherstoe had read it before the verdict was returned.
Held, that, in the circumstances, a fresh trial should be ordered, asthe ease of the appellants could have been prejudiced by the newspaperreport.
Held further, that an Advocate assigned by the Court has no authorityto appear for an accused person when the latter wishes to conduct hisown defence.
GUNAfvBKAKAThe King t. Sugothathun
Appeal against five convictions in a trial before a Judge aud Jury.
C. S. Barr Kuuwralculaainghe, with C. (', Haearainam end TzadeenMohammed, for the first accused appellant.
0, K. VhiUy, with S. S. KvlatiUeke and V. Wijetunge, for the secondaccused appellant.
Lucien Jayetileke, with T. H'. Hujaratnum, for the third accusedappellant-.
//. A. Chandrasena, for the fourth accused appellant.
Colvin f{. de Silva, with V. ThiUainathan and K. C. dt Silva, for thefifth accused appellant-.
II. A. Wijtmanne, Croton Conned, for the Crown.
Cur. adv. vult.
August 8, 11)49, Gukasekaba J.—
The appellants were tried on June 13, 14, and 15, ufton on indictmentcontaining three counts which charged them with committing
an offence punishable under section 140 of t-lut Penal Code bybeing members of an unlawful assembly the common object of whichwas robbery;
an offeuce punishable under section 290 of the Penal Coderead with section 146 of that Code, by committing the murder of oneSugathadasa in prosecution of that object; and
an offence punishable under section 296 of the Penal Codeby committing the murder of Sugathadasa.
By a unanimous vordiefc the Jury convicted them on the first andsecond counts and they were sentenced to death. NTo verdict wasreturned on the third count.
At the beginning of the proceedings in the Court of trial, before theindictment was read to the prisoners, an Advocate who had heou assignedby the Court to defend the first, third and fifth appellants informed theCourt that tlie first appellant wished to conduct his own defence. This,request was not granted, and the first appellant** defence was conductedby the Advocate. In appeal it was contended on his behalf that he wasin law entitled to conduct his own defence if he choso to do so, and thatin the circumstances the assigned counsel had no authority to appearfor him. We are of opinion that this contention is entitled to prevail,and that the case against the first appellant must be tried afresh
GUNASKKARA J.—The King v. Sugathadaea
»6
lb was contended on behalf of all the appell&nte that the trial wasconducted In an atmosphere of prejudice in that on the last day they werehandcuffed in the dock and were surrounded by an armed guard, and thatduring the luncheon interval there was available to the members of theJury an early edition of the Times of Ceylon which contained a repoitof an attempt to break prison alleged to have been made on the morningof that day by some prisoners in the Welikada Jail, and which specifi-cally mentioned two of the appellants as having been concerned in theattempt.
It was established by evidence that the early edition of the Times ofCeylon of June 15 carried such a report, that it was available in Colomboshortly alter twelve noon on that day, and that copies were being soldin Hulftsdorp shortly after 12.40 p.ra.; but there was no evidence thatthey reached any member of the Jury.
We gave Counsel an opportunity of adducing the evidence of membersof the Jury, and Mr. J. V. Dawson, who was the foreman, was called onbehalf of the appellants. It appears from his evidence that when theJury re-assembled at the end of the luncheon interval one of them hadin his hands a copy of the Ceylon Observer of that day and drew hisattention to a headline abont an attempt by some prisoners in theWclikode Jail to escape from jail. The Observer report, which wasproduced by the Crown, is in these terms :
“EXPLOSIVES. BURGLARS' -.TOOLS FOUND IN JAIL.ESCAPE EFFORT BY WELIKADA PRISONERS.
Explosives and house-breaking implements were found in the. possessionof certain prisoners in the Welikada Jail this morning.
The discovery of the explosives and implements was mode todaywhen Mr. B. J. de S. Adhihotty, Jailor, searched the belongings of theprisoners. The explosives are believed to have been introduced intothe jail by prisoners on their return from Hulftsdorp. Jt was theirintention, it is suspected, to blast a prison wall to sccuro their escape. ”
It may be taken as established that at (east one member of the Juryread this report while the trial was pending and it is not unlikely thatothers too read it before the verdict was returned at 5.20 p.in. It isalso to be expected that the report, appearing as it dkl in a reputablenewspaper, would have l>een accepted tvs reliable.
Was there anything in the context in which this report- would have l»ccnread that could hare led a juryman reading it to believe that the accusedwere parties to the plot to break jail I
According to Mr. Dawson, the proceedings in court on that <bvwere attended by unusual features: before the trial was resumed a ».II a.in. he noticed that there was mere than usual police activity aboutthe court-house, that the police guard had been increased, that theActing Inspector-General of Police himself was present, and that theprisoners were brought into court handcuffed and chained. At- about
U6GUXA8EKARA J.—The King v. Sugaihudaxa
five minutes to eleven he heard a rumour that firearms had been foundin the possession of some of the accused, and the rumour had reached allseven members of the Jury.
There was also the circumstance that according to the Crown caseupon the indictment that was being tried the five accused had conspiredto use, and did use, revolvers in the commission of the offences charged.Ill all these circumstances, although the rumour related only to someof the accused, it serais to the majority of us to be pretty certain thata juryman reading the newspaper report would have oonoluded thatthe five accused were the persons referred to as the prisoners returningfrom Hulftsdorp who introduced the explosives into the Welikada Prisonand that they were parties to a conspiracy to break jail using explosivesfor the purpose.
It seems to us that in this view of the matter the position is not dis*similar to that arising in a case where an inadmissible statement reflectingon a prisoner’s character is made in court in the hearing of tho Jury.
Lilian Grace Palmer (1935) 25 Cr. App. H. 97 is an instance of such acase. Before Palmer’s case came on for hearing, counsel appearingfor her son in another case and pleading in mitigation of sentence saidthat his client was the son of a mother who was a notorious shop-lifter.This remark was made in tile hearing of tile Jury that was to try Palmeron a charge of receiving stolen property. The presiding Judge told theJury in his summing up—
" Before the case came on, there was a remark about the female
defendant which is not in evidence, and you must entirely dismiss
it from your minds.”
Delivering the judgment of the Court of Cmuiual Appeal, Lord He wart,
C.J., observed that that was a request to the Jury to perform a verydifficult feat. “ It dearly would have been more satisfactory ”, hesaid, “ if the case had been adjourned and tried before a jury who hadnot heard any such remark. That highly unfortunate incident is initself a sufficient reason for allowing the appeal and quashing theconviction.”
In the case before us the majority of the Court has reached the con-clusion, though not without hesitation, that in all the circumstancesthe case of the appellants could have been prejudiced by the newspaperreport being read, by one or more of the jurymen and considers that itwould be prudent to order a fresh trial, especially as this is a case in whichfive persons have been found guilty of murder by the application ofsection 146 of the Penal Code.
We accordingly set aside the conviction of all the appellants and thesentences passed on them and order a fresh trial upon the wholeindictment.
.Freak trial ordered.