114-NLR-NLR-V-43-THE-KING-v.-W.-P.-BUCKLEY.pdf
474
HOWARD C..T,—The Kina v. W. P. Buckley.
[Court of Criminal Appeal.]
1942 Present : Howard C.J., de Kretser and Wijeyewardene JJ.
THE KING v. W. P. BUCKLEY.98—M. C. Panadure, 18,345.
^ Verdict unreasonable—Evidence viewed by the Jury in sections—Failure toview the evidence as a whole—Court of Criminal Appeal Ordinance.
' s. 5 (1).
Where the Jury has viewed the evidence in a case in sections andaccepted those parts that pointed to the guilt of the accused and dis-regarded those facts that pointed to the improbability of the storyput forward by the Crown,
Held, that the Jury would have had a reasonable doubt as to the guilt ofthe. accused if they had viewed the evidence as a whole and that theverdict could not be supported.
A
PPEAL from a conviction by a Judge and Jury before the 2ndWestern Circuit.
H. V. Perera, K.C. (with him C. S. Barr-Kumarakulasinghe, O. L. deKretser (Jnr.) and S. Saravanamuttu), for accused.^ -appellant, who isalso the applicant in the Application.
M.W. H. de Silva, K.C., A.-G. (with him D. Janszc. C.C.), for theCrown.
July 31, 1942. Howard C.J.—
The appellant in this case appeals on grounds of law and also appliesfor leave to appeal on matters other than law against his convictionfor rape. We do not consider that there is any substance in his appealon grounds of law. No real objection is taken by Counsel for the appel-lant to the summing-up of the learned Judge. The only question thatarises for our consideration is whether this Court should exercise the
475
HOWARD C.J.—The Kinp v. W. P. Buckley.
pc-.vers vested in it under section 5 (1) of the Court of Criminal AppealOrdinance and set aside the verdict of the Jury on the ground that it isunreasonable or cannot be supported by the evidence. The principleon which these powers should be exercised was given carefulconsideration in The King v. Andiris Silva'. Following the Englishcases, it was held that it is not the function of a Court of Criminal Appealto re-try a case which has already been decided by a Jury. Our decisionin this case in no way represents a departure from this principle, whichhas been accepted by both the English and Ceylon Courts of CriminalAppeal. There is no doubt that in the present case the Jury havearrived at their verdict upon evidence properly admitted and after acorrect direction by the Judge. If, however, the. Court thought, afterreviewing the whole of the evidence, that the verdict could not besupported, the Court was not only entitled, but was bound, to exercisethe powers conferred upon it by section 5 (1) of the Ordinance and allowthe appeal.
The defence of the appellant was based on the plea that the act ofsexual intercourse with Missi Nona was committed with the latter’sconsent and that similar intercourse had taken place some ten dayspreviously. The prosecution, however, contended that on May 7, whenthe offence is alleged to have taken place, the appellant was a strangerto Missi Nona and the other inmates of her house. This house is notvisible from the Village Committee road and the wooden bridge where theappellant parked his truck. It seems extraordinary, if he had not beenthere before, that the appellant should have found' his way to the houseof Missi Nona, particularly as another house marked “ I ” on the planproduced was visible from the bridge. From remarks made whenpassing sentence, the learned Judge seems to think that the appellantmay have been taken to a house some days before and when, he foundhimself in the wrong house proceeded to rape the girl. It is, however,hardly credible that the appellant would proceed to the extremes he didwithout making a further effort to discover the location of his previousvisit or that he would commit such an offence after' he had attractedattention to himself by leaving his truck exposed to the view of everyonein the locality. The manner, therefore, of the appellant’s approachto Missi Nona’s house would seem to bear out his plea. If the appellant’spresence at the house fails to fit into the picture painted by the Crown,the behaviour of some of the inmates of the house is incredible, if theirstory of a rape of Missi Nona is to be accepted. According to his story,Manis Costa, Missi Nona’s brother, on the arrival of the appellant at thehouse, rushed over to the house of his relation, Louis Appuhamy, who wasa person of some position in the village. Louis Appuhamy, thereupon,came over to the house with Manis and found Missi Nona crying. Afterasking her three or four times why she was crying she said she had beenharmed. Louis Appuhamy said that he understood her to mean thatMissi Nona had had intercourse with the appellant and had been usedas a wife. Missi Nona’s mother also told him that the man had harmed 1
1 41 .V. L. R. 433.
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HOWARD C.J.—The King v. W. P. Buckley.
the girl and gone away. On the same day, Manis Costa made a statementto the headman in the following terms : —
“ At about 1.30 p.m., an Australian, armed with a gun, came andtold him something that he did not understand, that the Australianthen went inside, got hold of his sister by the hand and pulled her,that they then raised cries, that the Australian got out of the house,pointed a gun at them and walked away. That at this time,M. D. Louis Appuhamy and Baron Appuhamy came at our cries andthat others also saw this. ”
No suggestion is made in this statement that the girl had "been raped orthat the Australian had even had sexual intercourse with her. More-over, an entirely false picture was created by the statement that LouisAppuhamy and Baron Appuhamy came as the result of cries and thatothers saw what had happened. The headman did not take action,but stated in .evidence that he would have done so if there had been anycomplaint of rape. In fact, the first complaint to any person in authoritythat a rape had been committed was made on May 13, 1942, six daysafter th'e offence was alleged to have been committed—when Manismade his statement to the Police. The unsatisfactory character ofManis’ evidence is manifest. The testimony of Missi Nona’s mother andsister is also not calculated to increase confidence in the truth of thestory put forward by the Crown. The mother maintains that she wasan eye-witness, of what took place. Yet she states that, when* theappellant and her daughter got up, she asked the latter what he had done'to her. Moreover, she states that she told her daughter not to cry asotherwise he might murder her. Her sister—Jane Nona—states that,on the arrival of the accused, she ran to her Aunt’s house where she stayedfor two hours. She came back to find her sister crying and saying thatthe accused had molested her. She understood this to mean that theaccused had chased after her but nothing else. She also says that hersister did not tell her that the appellant had had intercourse with her.Missi Nona, in her evidence, says that she was dragged some distancealong the ground and yet sustained no injuries, not even a scratch.
The Attorney-General, whilst conceding that some of the witnessescalled by the Crown and, in particular, Manis have given evidence of anunsatisfactory character, maintains that the behaviour of Missi Nonais consistent with her story that the offence was committed and suchstory was accepted by the Jury. Inasmuch as it does not lack corrobora-tion it is sufficient to support the conviction. The Attorney-Generalalso makes the point that the Doctor’s evidence establishes that Missi' Nona was a virgin when this offence was committed and hence theappellant’s story of previous sexual intercourse must be untrue. Perusalof the Dbctor’s evidence, however, indicates that his testimony- was notas unequivocal and precise as claimed by the Attorney-General. Incross-examination, the Doctor admitted that Missi Nona could have hadsexual intercourse before. In fact, his testimony is consistent with herhaving been a virgin or having had previous sexual intercourse.
We are of opinion that in arriving at a verdict of guilty the majorityof the Jury must have viewed the evidence in sections and accepted and
HOWARD C.J.—Aiyathurai v. Thuraisingham.
477
convicted the appellant on those parts that were satisfactory and dis-regarded those facts that pointed to the improbability of the story putforward by the Crown. The Jury should have viewed the evidenceas a whole. If they had done so, we are of opinion that they must havehad a reasonable doubt as to the guilt of the appellant. The verdict is,in our opinion, unreasonable, inasmuch as taken as a whole the evidencedoes not support the conviction. In these circumstances it ought note-tostand. The appeal is accordingly allowed and the conviction quashed.
Appeal allowed.