THE QUEEN v. D. G. DE S. KULARATNE and 2 others

109-NLR-NLR-V-71-THE-QUEEN-v.-D.-G.-DE-S.-KULARATNE-and-2-others.pdf


629
The Queen v. Kidaralne
[Court of Criminal Appeal]
1968 Present: Slrlmane, J., idles, J., and Samerawtckrame, J.'
THE QUEEN t>. D. G. DE S. KULARATNE and 2 othereAppeals Nos. 66-58/68, with-Applications 79-81S. C. 119/67—M. C. dalle, 48232
Trial before Supreme Court—Evidence—Two persons who could have committed anoffence—Inference of guilt against one only of them—Burden of proof then—Statements made by a witness outside the Court of trial—Inadmissibility assubstantive evidence— Circumstantial evidence—Trial Judge's emphasis on onehypothesis only in preference to another—Misdirection—Evidence of an expert—Requirement that it should be based on scientific criteria—Production in acriminal case—Mode of proving its identity—Scope of s. 122 (3) of CriminalProcedure Code—Meaning of term “ a police officer ”—Indictment—Amendmentof it by Court—Proper procedure—Unsworn statement of accused from dock—Evidential value—Misdirection on possibility of suicide— Unreasonablenessof verdict of j’ry—Circumstances when trial Judge may direct jury to acguitaccused at end of case for the prosecution—Criminal Procedure Code, as. 121 (2),122(3), 172,173, 176, 234(1).
The case for the prosecution vrae that the let accused, his mother (the 2ndaccused) and their woman servant (the 3rd accused) caused the death of the1st accused’s wife by arsenic poisoning. There was strong evidence of motiveagainst the 1st accused in that there was a great deal of unpleasantness betweenhim and his wife. It was also shown that the 2nd accused had a strong dislikefor the deceased. The 3rd accused was alleged by the prosecution to haveserved the poisoned food on to the deceased’s plate on the day in question at-the instance of the 1st and 2nd accused. The case against all three accused,however, rested entirely on circumstantial evidence.
i
■i
The main grounds urged on behalf of the accused-appellants were that it wasunreasonable for the jury to have acted on the evidence.of t)ic deceased’sdaughter Achini, the chief witness for the Crown, and that even if that evidencewas accepted, there was no basis for a reasonable inference that the poison wascontained in the food served by the 3rd accused, as the possibility of thepresence of the poison in the food served by one Cicilin (another' cook in thesame house), who was not called as a witness, had not been excluded. CrownCounsel submitted that Cicilin was not called because there Jwas no evidence ofmotive against her.?
V'
* ?
Held, (i) that, when the evidence led for the prosecution lends itself to areasonable inference that either of two persons could have committed an act,the burden is on the prosecution to exclude one person effectively if it seeks toattach responsibility for that act to the other person; mid the best way—oftenthe only way—in which this can be achieved is by the prosecution calling as awitness the person sought to be excluded. The failure of the prosecution tocall Cicilin as. a witness resulted in a serious deficiency in the proof of theprosecution case. There was no evidence of motive against Cicilin,' but at theBame time there was no evidence to show that she had no motive.
40 -PP 006137 (98/08)
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The Queen v. Rularatnc
{ii) that when a witness is shown to have made a previous statement outsidethe Court of trial, inconsistent with his evidence at the trial, the jury shouldnot merely be directed that the evidence given at the trial should be regardedas unreliable, but should also be directed that previous statements, whethersworn or unsworn, do not constitute evidence upon which they can act. In theabsence of such directions, the jury could well have thought that, howeverunreliable Achini’s evidence in Court might be, her previous evidence at theCoroner’s inquest (or later at the non-summary inquiry) was substantialevidence on which they could act.
that where, in a case of circumstantial evidence, the jury sue faced withthe difficulty of choosing one hypothesis in preference to another, they wouldonly be too strongly inclined to follow the one recommended by the trialJudge, despite the strongest direction that they are free to ignore it and act ontheir own. The strong suggestion in the summing-up to test Achini’s vitalevidence on the basis that one only of three possible theories was an establishedfact was a misdirection.
that the two “ experts ”—a Professor of Forensic Medicine and anAssistant Government Analyst—whose evidence was led by the prosecution inan effort to prove that there was Potassium Arsenite in the stomach of thedeceased gave their opinion on the basis of criteria an important part of whichwas such that they themselves considered unworthy of recommendation as ascientific fact. It was, therefore, the duty of the trial Judge to hove given aclear direction to the jury to disregard the opinion of the experts altogether.
that in a criminal case the identity of productions must be accuratelyproved by the direct evidence which is available and not by way of inference.At the trial the Analyst produced the plate on which he found a trace of arsenic,but neither the Police Constable who had brought the plate to him nor Achiniwho had given it to a Police Inspector was called to identify the plate as theone whioh was alleged to have been used by the deceased when she took herlast meal.
that the term “ a police officer ’* in section 122 (3) of the CriminalProcedure Code is not restricted to an officer in charge of a police station orone deputed by him. It extends also to other officers who are, in one wayor another, in charge of a police station in so far as the investigations areconcerned, e.g., an Assistant Superintendent of Police of the town, the. Superintendent of Police of the District, the Inspector-General of Policeand his Deputies. Accordingly, a statement made by the 1st accused to anAssistant Superintendent of Police in the course of the inquiry under Chapter12 of the Criminal Procedure Code was governed by the provisions of section122 (3).
that a statement made in the course of an inquiry under section 122 ofthe Criminal Procedure Code can only be used for the limited purposepermitted by that section, viz., to contradict the person making it if hesubsequently says something different. It cannot be used to form the basis foran inference that the conduct of the person who made it was suspicious.
that before a charge is amended, particularly at a late stage, thedefence should be given an opportunity of making their submissions on thepoint. Thereafter, if the amendment is made, the defence should be consulted,
The Queen v. Kularatne
631
again before the Judge decides whether or not to proceed with the trialimmediately in tonne of section 172 or 173 of the Criminal Procedure Code.In the present case, however, the failure to observe this rule did not causeprejudice to the appellants.
that when an unsworn statement is made by the accused from the dock,the jurors must be informed that such statement must be looked upon asevidence, subject however to the infirmity that the accused had deliberatelyrefrained from giving sworn testimony. But the jury must also be directedthat (a) if they believe the unsworn statement it must be acted upon, (6) if itraises a reasonable doubt in their minds about the case for the prosecution, thedefence must succeed, and (c) that it should not be used against anotheraccused. The dock statement of the 1st accused was dealt with in such amanner in the present case that it was likely that the jury thought that theywere not called upon to pay any attention at all to that statement.
that there was misdirection when the trial Judge, in effect, withdrew theissue of suicide from the jury although the possibility of suicide arose in thecase.
that, quite apart from the misdirections which must have prejudiced theappellants, the verdict of the jury was unreasonable and, in any event, couldnot be supported having regard to the evidence.
Held further, by the majority of the Court, that the trial Judge was right innot giving a direction to the jury under section 234 (1) of the CriminalProcedure Code t_ -cquit the accused at the end of the prosecution case.
A.PPEALS against three convictions at a trial before the SupremeCourt.
.a
G. E. Chitty, Q.C., -with Eardley Perera, G. Candappa, A. M.Goomaraswamy, M. Underwood, AnU Obeysekera, G. E. Chitty (Jnr.)and A. 8. L. Gunasekera, for the 1st Accused-Appellant.
R. 8. R. Goomaraswamy, with Kumar Amarasekera, GaminiWanigasekera, C. Ckahradaran, T. Joganathan, Asoka de Z. Gunawardena,Kosala WijetiUeke, M. 8. Aziz and Shantki Perera, for the 2ndAccused-Appellant.
Colvin R. de SUva, with B. C. F. Jayaratne, R: 1. Obeysekera, BalaNadarajah, P. D. W. de SUva, I. 8. de SUva and P. Tennekoon, tor the3rd Accused-Appellant.
Clarence M. Fernando (assigned), for all Accused-Appellants.
V. 8. A. PuRenayegum, Senior Crown Counsel, with A. C. de Zoysa,Senior Crown Counsel, Kenneth Seneviratne, Crown Counsel, and T. D.Bandaranayake, Crown Counsel, for the Crown.. .
Cur. adv. wit.
532
JUDGMENT OF THE COURT—The Queen v. Kularatne
November 10, 1968. The Judgment of the Court—
Padmini Kularatna died on the evening of 9th April, 1967.
There can be no doubt that her death was due to arsenio poisoning.
The Crown alleged that her husband, the 1st accused, his mother, the2nd accused, and a woman servant who did the cooking, the 3rd accused,were responsible for hef death.
On the first count in the' indictment, in its amended form, all threewere charged with having conspired to murder the. deceased between10th March 1967 and 9th April 1967. On the second count, the 3rdaccused alone was charged with murder and on the third count the 1staccused was charged with abetting the 3rd accused to commit murder.It was conceded at the argument that the date 10th March 1967 had beeninserted in the indictment on inadmissible evidence, but nothing turnson this point.
The appellants were convicted on all three counts by the unanimousverdict of the jury, and sentenced to death.
There were several matters argued before us at the hearing of theappeal, when it was strongly urged that the verdict of the jury wasunreasonable, or that it cannot be supported having regard to theevidence. In fact, learned Counsel for the appellants submitted thatat the close of tlie prosecution case there was no evidence that the accusedhad committed the offences, and that the learned trial judge should havedirected the jury, under section 234 (1) of the Criminal Procedure Code,to return a verdict of not guilty. Submissions were also made thatthere were several misdirections and non-directions in the learned trialJudge's charge to the jury and reception of inadmissible evidence, whichvitiated the convictions.
The case rested entirely on circumstantial evidence, and it is necessaryto examine that evidence, not for the purpose of considering whetherthat evidence raises a reasonable doubt in our minds (which we mustguard against doing) but to consider the submissions made for theappellants, whether there have been misdirections on the evidence, andwhether the verdict is unreasonable or cannot be supported havingregard to the evidence.
There was, to begin with, strong evidence of motive against the 1staccused. The prosecution led evidence to show that there was a greatdeal of unpleasantness between the 1st accused and the deceased, thatshe had been treated harshly, in a humiliating manner, and that he(1st accused) had filed an action “or divorce. There was also evidence
633
. JUDGMENT OF THE COURT—The Queen v. Kvlaratne
which indicated that the deceased was determined to resist the 1staccused’s claim for a divorce and that the 1st accused was prepared topay a large sum of money to the deceased if he could rid himself of themarriage tie.
It was also shown that the 2nd accused'had some influence over herson, and that she had a strong dislike for her daughter-in-law. Whenthe deceased died in the circumstances that she did, it is natural thatsuspicion should fall on them. It is of some importance to rememberthis, because, it was urged right-throughout the arguments for theappellants that the jury was “in a mood to convict” regardlessof all the infirmities in the evidence, on the, basis, “ if not they, whoelse?”.**
The case for the prosecution was that the 1st and the 2nd accusedhad made use of the 3rd accused to serve some bilin achcharu, whichcontained poison, on to the deceased’s plate that afternoon. To provethis, the prosecution relied on the evidence of the deceased’s daughterAchini.
The main grounds urged on behalf of the appellants were that it wasunreasonable for the jury to have acted on Achini’s evidence, and thateven if that evidence was accepted, there was no basis for a reasonableinference that the poison was contained in the foods served by the 3rdaccused, as the possibility of the presence of the poison in the foodsserved by Cicilin (another cook) had not been excluded:
According to the evidence led by the prosecution, there were twopeople who served food on the deceased’s plate that day—Cicilin and the3rd accused-appellant. The prosecution had to prove beyond reasonabledoubt that the poison could not have been introduced by, or throughfood served by, Cicilin.
Cicilin was not called as a witness.
Learned Crown Counsel submitted that Cicilin was excluded, (a) byabsence of motive, and (6) by the evidence that other people also atefood cooked by her on that day. In regard to the first point, learnedCounsel for the 3rd accused-appellant had suggested to Achini in crossexamination that Cicilin was not well-disposed towards the deceased.Achini’s answer was that she did not know. The only other evidence onthis point was that the deceased, a few weeks before this incident, wantedonly food cooked by Cicilin. That was not because Cicilin was on goodterms with her but because food cooked by her (Cicilin) was eaten byeverybody in the house, and the 3rd accused-appellant prepared certainspecial dishes for the 1st andjtad accused-appellants. As the deceased
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JUDGMENT OP THE COURT—The Queen v. Kularatne
was apparently in fear of being charmed, she probably thought that acharm could more easily be introduced, to the special dishes cooked bythe 3rd accused-appellant. On the evidence, therefore, there was noevidence of motive against Cicilin, but at the same time there was noevidence to show that she had no motive. As stated by Channel, J. inRex t;. EUwood (see Cross on Evidence at page 28): “ There is a greatdifference between absence of proved motive and proved absence ofmotive.” There was no evidence of any motive against the 3rd accused-appellant either. The learned trial Judge, in dealing with this question,said (at page 981) that Achini’s answer to Counsel’s question “ I do notknow ” meant much the same thing as “ no ”, and went on to say, “ asfor Cicilin the available evidence is that she was on perfectly good termswith the deceased.” There is no evidence to support this statement.
The first ground, absence of motive, on which it was sought to excludeCicilin, therefore, in our opinion, fails.
On the second point, the evidence of Achini was that Cicilin dishedfood on to her mother’s plate straight from the pots and pans and notfrom the dishes, and one gathers that at the time she went to Cicilin’skitchen some part of the food had already been dished out to dishesthat were on the table (at page 698). In answer to a question (at page 765)Achini said that Cicilin did not put on the plate any food that had alreadybeen dished out from the chatties. It was the food which had been puton the dishes that were taken to the table and eaten by her and hersister. The evidence on this point does not positively exclude thepossibility that the poison may have been in one of the foods whichCicilin had cooked. Achini was twice asked whether she rememberedthe food that was dished to her mother’s plate by Cicilin (at pages 318and 643) and she said she could not remember, and there was no evidencewhether all the different kinds of vegetable that were dished on to hermother’s plate from Cicilin’s pots and chatties had also been sent to thedining table for the others to eat. On the second ground, too, therefore,Cicilin cannot necessarily be excluded. When the evidence led for theprosecution lends itself to a reasonable inference that either of twopersons could have committed an act, then the burden is on theprosecution to effectively exclude one if it seeks to attach responsibilityfor that act to the other; and the best way—often the only way—inwhich this can be achieved is by the prosecution calling as a witness theperson sought to be excluded. In Rex v. Blow, referred to in Hoffmann(South African Law of Evidence, page 31) Watermeyer, J. referred totwo cardinal rules of logic which govern the use of circumstantialevidence in a criminal trial: (1) The inference sought to be drawn mustbe consistent with all the proved facts. If it does not, then the inferencecannot be drawn. (2) The proved facts should be such that they excludeevery reasonable inference from them, save the one to be drawn. If theyhad not excluded the other reasonable inferences, then there must be adoubt whether the inference sought to be (drawn is correct.
JUDGMENT OF THE COURT—The Queen v. KularcUne535
Counsel for the 3rd accused-appellant had urged this matter at thetrial and told the jury in his address that the failure by the prosecutionto call Cicilin had left the inference that there was any poison in the foodserved by the 3rd accused-appellant in doubt. Counsel had alsoapparently added that had the prosecution called Cicilin the defencewould have got something favourable to them by questioning her. Buthis real contention was that it was incumbent on the prosecution to callCicilin as a witness. In dealing with this submission, the learned trialJudge, quite rightly, told the jury, that it was not the law that theprosecution should call a witness to enable the defence to question her.But when he added that if the defence wanted to question Cicilin, theycould call her,—there was grave danger of his being misunderstood bythe jury in regard td the burden of proof, for they may well have thoughtthat once the prosecution showed that the 3rd accused-appellant hadserved some food and alleged that this was unusual, then they werebound to infer that the poison was in the food served by her, if the defence,failed to call Cicilin to negative that inference.
On any realistic basis, Cicilin was not a witness available to the defence.On the contrary, the prosecution should have called her, and1 theirfailure to do so resulted in a serious deficiency in the proof of theprosecution ease.
On the question whether the 3rd accused-appellant’s conduct wasunusual, the defence pointed out that up to a period of about three weeksbefore this incident, food cooked by both—the 3rd accused-appellantand Cicilin—was eaten by everyone in the house. It was thereafterthat the deceased preferred to eat Cicilin’s food only and the 2ndaccused-appellant, too, told Achini not to take food cooked by the 3rdaccused-appellant to her mother. But there was no definite evidencethat the 3rd accused-appellant was told, or that she knew, that foodcooked by her should not be taken to the deceased.
We are of the view that the prosecution has failed to exclude thereasonably possible inference that the poison may have been in foodserved by Cicilin.
There is then the vital evidence of Achini. She had. stated in Courtthat after Cicilin had served some food—the details of which she couldnot remember—the 3rd accused-appellant took her by the hand intoher kitchen and served bilin achcharu once from a small dish and againfrom a pot, and also some fish. It was strongly urged, particularly bythe Counsel for the 3rd accused-appellant, that the jury had actedunreasonably in accepting this evidence. He pointed out that Achini’sevidence against the 3rd accused-appellant grew from nothing (in herstatement to the police XI) to a conscious and deliberate act, in herevidence in Court. He ported out instances when, in denying previous
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JUDGMENT OF THE COURT—The Queen v. KularcUne
statements, she was obviously untruthful and a number of otherinfirmities, which it is not necessary to deal with in detail, as a resultof which it was submitted no reasonable jury could have acted on herevidence. But these matters must have been placed before the jury andwe would have been slow to interfere on those grounds alone. Therewere, however, certain submissions made regarding non-direction andmisdirection on Achini’s evidence which have to be examined. Thelearned trial Judge himself referred to Achini’s evidence as very muchcast in doubt and said that on certain matters her evidence was quiteunreliable or inexplicable. There was the statement (XI) which shemade on the night of her mother’s death to a police officer who wasobviously trying to find out the persons who had served food on thedeceased’s plate that afternoon. Achini had said then, that Cicilindished out rice, wattakka, beans, mellun and radish, and added, “Ifound fish and bilin achcharu dished out to be taken to the dining tableand I served the fish and bilin achcharu from the dishes and servedmyself, and brought and handed over to mother.” This is indeed aa very vital contradiction of her evidence in Court. It excludes the3rd accused-appellant altogether. Achini denied having made thatstatement.
The learned trial Judge told the jury that it could not be explained inthat way, or that the police made Borne mistake. In order to “ counter ”,as the learned trial Judge put it, this statement, the prosecution producedthe evidence given by Achini at the inquest next'morning marked Y1where she had stated that after Cicilin served rice, wattakka, etc., she(Achini) went to the other kitchen and the 3rd accused-appellant servedinto the same plate fish and bilin achcharu. At the argument in appeallearned Counsel for the 3rd accused-appellant submitted that Yl andher evidence at the magisterial inquiry Y3 were admitted by the learnedtrial Judge “ in rebuttal ”. The record at page 916, where the learnedtrial Judge says that he allows Y3 in rebuttal, and the use of the word" counter ” in the charge in relation to Yl, lends support to this argument.Both Yl and Y3 were produced as part of the prosecution case before itwas closed. It was pointed out that evidence in rebuttal can only beled after the defence has been closed, vide section 237 (1) of the CriminalProcedure Code. But though inadmissible under that section, learnedCrown Counsel submitted that the statements were admissible undersection 157 of the Evidence Ordinance. It was argued by the defencethat Yl did not corroborate Achini’s evidence that she was held by thehand and taken into the kitchen, but contradicted it. We think,however, that Yl, in substance, corroborates her position in Court thatthe 3rd accused-appellant served food on to her plate in her kitchen.There is some technical merit in the objection taken that Yl was notproperly produced. It was a statement made to the Coroner (whoalso happened to be the Magistrate); proceedings before the Coroner donot form part of the Magistrate’s Court record. In this instance, itappears that it had been accidently bound qsrith the Magistrate’s Court
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JUDGMENT- OF THE COURT—The Queen v. Kvlaratne
proceedings, and sent up to the trial court. The inquest proceedings,therefore, were not strictly in the proper custody of the Clerk of Assize,and the Coroner should have been called to prove it. But the objection,in our view, to the admission of Yl is only technical.
In regard to XI, the learned trial Judge placed before the jury thepossibility that in her distress that night Achini may have been inaccurate.In regard to Yl he said (at page 994) “ So the prosecution tells you,you must hold that what is said here is true because that is what Achinitold the Magistrate in the morning.” This statement is correct, but hedid not give any specifio direction to the jury relating to the legalframework within which statements like Yl and Y3 made outside the• Court of trial could be used. In Oolder, Jones and Porritl, though thefacts were different—in that the statement was contradictory and awrong direction was given—it was held, " that when a witness is shownto have made a previous statement inconsistent with his evidence atthe trial, the Jury should not merely be directed that the evidence givenat the trial should be regarded as unreliable, but should also bedirected that the previous statements, whether sworn or unsworn, donot constitute evidence upon which they can act.” We think thatthese remarks apply to any previous statement made outside Court.The jury, in the absence of directions, may very well havethought that, however unreliable Achini’s evidence in Court may be,her evidence next morning at the inquest (Yl) (or later at the non-summary inquiry Y3) was substantive evidence on which they could act:In our view, there was a non-direction on this point which was vital inthe circumstances of this case.
There is another matter affecting the manner in which the jury wasdirected to assess Achini’s credibility on which a great deal of argumentwas addressed to us. The learned trial Judge told the jury that if theywere satisfied that there was arsenic on the plate, and the poison hadbeen introduced through the food* then there was a killer at work in thehouse. He then invited .the jury to consider how a killer, who desiredto poison a single member of a large household, would work. He placedbefore them three theories :
The killer could put the poison into a chatty or pot before the
food was cooked and get it served from that pot.
He could do so after the food was cooked.
He could put the poison into a vessel into which some of the food
had been dished and see that the victim was served from thatvessel.
We are; in agreement with the submissions made by Counsel for theappellants that such an approach to Achini’s credibility is fraught withdanger. When faced with the difficulty of choosing one hypothesis inpreference to another, the jury would only be too strongly inclined to
1 {1961) 45 Criminal Appeal Reports 6.
538JUDGMENT OF THE COURT—The Queen v. Kularaine
follow the one recommended by the trial Judge, despite the strongestdirection that they were free to ignore it and act on their own. Theywould also be tempted to adopt it if that particular hypothesis provideda positive answer to the question, “ who was the killer in the house ? ”without leaving the matter in doubt. Hoffmann, South African-Law ofEvidence, page 31, says, “ All circumstantial evidence depends ultimatelyupon facts which are proved by direct evidence, but its use involves anadditional source of potential error because the court may be mistakenin its reasoning. The inference which it draws may be a non sequitur,or it may overlook the possibility of other inferences which are equallyprobable or at least reasonably possible. It sometimes happens thatthe trier of facts is so pleased at having thought of a theory to explainthe facts that he may tend to overlook inconsistent circumstances orassume the existence of facts which have not been proved and cannotlegitimately be inferred.”
It is clear that the learned trial Judge thought that the third was theone and only hypothesis, and expressed that opinion, to use his ownwords, “ in very strong language ”. He rejected the first two theoriesas they involved the risk of people other than the intended victim beingpoisoned. It was urged, with much force, that this rejection was madeon grounds which were not compelling, for, in either of the first twotheories, the poisoner could have thrown away the rest of the food inthe chatty or pot after the victim’s plate was served and if there had beena conspiracy with the cook, a small chatty could have been used, so thatlittle food would have been Wasted. The learned trial Judge then wenton to say that if the jury accepted the third theory as correct—thenAchini's evidence in Court must be true. The proposition was conveyedto the jury in the following terms (at page 1000) :—
“ If somebody wants to put the poison on the plate of one person,
to poison that one person only in that houseif somebody wants
to do that, how would he set about it ? Gentlemen, the only waythat the killer would set about it is to have it served, either serveit himself or see that it is served from a separate vessel on to theplate.
If you are sure, purely on a rational basis, forgetting all the peoplein the accused’s family, that this is the way, the only way that thiscould have been done—that is precisely what Achini tells you—if you,applying your intelligence carefully, have to come to an irresistibleconclusion, you have to consider how the poisoner would act. If theonly irresistible conclusion is that it had to be put in a separate vessel,and from that vessel put on the plate, then you have the point. Ithink that is precisely what Achini tells you.
You have then the point, the reasonable point that what Achinitells you is inherently credible. If you are convinced that this is theonly way that this could have been done, then Achini is saying nomore than what had happened.”
JUDGMENT OF THE COURT— The Queen v. Kvlaratne
539
Achini’s evidence was that food prepared by Cicilin had been put on todishes from the chatties in which they were cooked when Achini tookher mother’s plate into the kitchen, and Cicilin served food on to theplate from the remaining food in the chatties. It is possible that thepoison may have been introduced into the food remaining in one of thechatties and served on to the plate of the deceased. In this way, poisoncould have been put into the food consumed by the deceased withoutfood that was served on to the dishes that went to the table beingaffected. Thus, the only way that this could have been done was notthat spoken to by Achini; and accordingly no inference could be drawnthat Achini was speaking the truth on the basis that the way she spoketo, was the only possible way. The learned trial Judge added a littlelater (at page 1004): “ I think I have expressed an opinion very stronglyin this matter in the last 10 or 15 minutes. I will warn you again. Ihave suggested one way in which you can solve this problem by askingyourselves whether this is the inevitable means of doing this, and if you- are sure that this- is the one .necessary way to achieve the transactionof poisoning, you then, perhaps will have no difficulty in believing Achiniwho just says, * Sopia served ”
It was urged by Counsel for the 3rd accused-appellant that the third,theory was quite consistent with Achini's statement to the Police set outin XI being true and her evidence in Court being false. (The evidenceled in the case indicated that Achini usually served food for her motherfrom the table and if the 2nd accused-appellant was present she wouldtell her what foods should not be served.) It was submitted that thekiller could easily have placed the poisoned food on the table so thatAchini would serve it herself as she said she did in XI. The only riskwas that Achini may not take food from that particular dish. But,'on the other hand, if Achini’s version was true, the killer ran, whatCounsel called, a triple risk. As the prosecution alleged that the deceasedhad asked Achini not to bring food cooked by the 3rd accused-appellant,if the killer had planned to get the 3rd accused-appellant to serve thepoisoned food, then Achini may refuse to let her serve the food, or ifthat was forcibly done, she may refuse to take the food to her mother,or she may take the food to her mother and tell her what the 3rd accused-appellant had done and that would lead not merely to a failure of theplan but to its discovery. It was submitted, therefore, that the strongsuggestion to the jury to test Achini’s evidence on the basis of the thirdtheory being the correct one was a misdirection, and we are in agreementwith that submission.
There is a passage, dealing with a submission of Counsel for the 1staccused-appellant a little later in the summing up which may, to put itat its lowest, have been misunderstood by the jury. Learned Counsel forthe 1st accused-appellant had contended that if, as suggested by theprosecution, food cooked by^he 3rd accused-appellant was not usually
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JUDGMENT OF THE COURT—The, Queen v. Kularatne
taken by Achini to her mother, then the poisoner would take into accountthat routine and introduce the poison through Cicilin rather than the3rd accused-appellant. The learned trial Judge said (at page 1006):
Mr. Ponnambalam in this connection refers to the fact that•everyone in the house knew that the deceased’s food was served fromthe dishes on the dining table.. Also, that everyone in the houseknew that food cooked by Sopia would not have been taken by Achinito her mother. And, Mr. Ponnambalam says, therefore, anyone whoplanned to put poison in the deceased’s plate would have taken accountof that routine and fitted the plan to that routine. They would nothave made a plan contrary to that routine. They would not havemade a plan according to which the food would be served in thekitchen and the achcharu, the poison would be served by Sopia.That is what Mr. Ponnambalam says. Mr. Ponnambalam says thatsomebody who knew the routine in the house, and who wanted topoison the deceased would have planned differently. But, gentlemen,what has happened in this case ? This somebody who wanted to poison
the deceased has got it done in this way. That is the fact
But it has happened in this way. It seems to me, gentlemen, if it hashappened this way, it was planned this way.”
Counsel for the appellants contended that, having developed a favouredtheory, the learned trial Judge had inadvertently, at this stage, slippedinto the error of looking upon the theory as a fact. On the other hand,learned Crown Counsel argued that the learned trial Judge,'when hesaid, “ This somebody who wanted to poison the deceased has got itdone this way. That is the fact ” meant, “That is the evidence ofAchini.” But, it was Achini’s evidence which was being tested, and it isfutile to deal with an argument that her evidence is untrustworthy bysaying, “ But Achini says so.”
We have, however, to consider the impact of these words on the juryin the context in which they were used. We are of the view that it isvery likely that the jury accepted Achini’s version in Court only becauseit fitted the third theory, and believed that on that evidence the presenceof arsenic in the food served by the 3rd accused-appellant was not merelya possible inference but that it was an established fact. We thinkthere is a misdirection in the passage quoted above.
The 1st accused-appellant is a doctor and had in his dispensary, in alocked cupboard the key of which was with his dispenser, two bottles ofLi qua Arsenicalis, which is a compound of arsenic knowp as PotassiumArsenite as distinct from Sodium Arseni to and white arsenic.
The finding of arsenic in the dispensary of a doctor is not in itself anincriminating circumstance, but, of course, it is a circumstance to betaken into consideration, for there was the opportunity for using it.
641
JUDGMENT OF THE COURT—The Queen v. Kuiaraine
– If the arsenio found in the internal organs of the deceased was PotassiumArsenite, it would indeed be a relevant fact which would tell against the1st accused-appellant. The opinions of two *' experts ”—Dr. Fernando,Professor of Forensic Medicine, University of Ceylon, and Mr.Satkunanandan, an Assistant Government Analyst—was led by theprosecution in an effort to prove that the potassium found in the stomachof the deceased was in excess of the quantity one should find in thestomach of a “ normal ” person, and that, therefore, the inference thatPotassium Arsenite was used could reasonably be drawn. As a gooddeal of argument was addressed to us on the evidence of these twowitnesses, we might deal with that evidence at this point.
Mr. Satkunanandan found 730 milligrams of potassium in the stomachof the deceased and its contents. But neither he, nor Dr. Fernando,knew the quantity of potassium which one would expect to find in thestomach of a normal person. This quantity must depend, to a largeextent, on the nature of the food a person has taken shortly before theexamination.
After the conclusion of the non-summary inquiry by the Magistrate,Mr. Satkunanandan had examined the potassium content in the stomachsof seven deceased persons, whose antecedents were unknown, and onthese figures Dr. Fernando thought that 200 milligrams as the quantityof potassium to be expected in the stomach of the deceased was a“ generous estimate ”. It is hardly necessary to emphasize that thisis not a scientific method of ascertaining any fact. Dr. Fernando saidthat the method was “ empirical ” and not scientific, and both witnesseswere agreed that they would not contribute an article to any scientificpaper commending any inference on the basis of the experiment madewith the seven stomachs. It was dear that neither of these witnessesclaimed to be an expert competent to express an opinion in this field.To this 200 milligrams Dr. Fernando added 390 milligrams (it shouldhave been 380) which, according to a textbook written by one Jacobs,would be the quantity of potassium one might find in four ounces ofrice, which was the quantity Dr. Fernando found in the deceased’sstomach at the postmortem examination. He thus made up a total of590 milligrams, which was deducted from the 730 milligrams, and it wassuggested that the excess of 140 milligrams might have found its wayinto the deceased’s stomach in combination with arsenio. If, in hisconclusions, he had allowed for the deceased having taken one moreounce of rice ( she had, in fact, vomited a part of her meal) and also takeninto account (had he known) the potassium content in the vegetablesand fish taken with the rice and some coffee taken later the total to bededucted from the 730 milligrams might well have been much higher,and left no excess at all, and on this basis potassium arsenite mighthave been eliminated altogether. Counsel for the 3rd accused-appellantalso argued that on an analysis of the evidence of these tv. witnesses,the use of potassium arsenite must be excluded. Mr. Satkunanandan
542
JUDGMENT OF THE COURT—The Queen v. KularcUne
analysed the potassium arsenite found in the bottle P23 and ascertainedthe proportion of arsenic and potassium in that liquid. He found inthe internal organs of the deceased 633 grains of arsenic. He expressedthe view that if potassium arsenite had been taken by the deceasedthere must be a minimum of 176 grains of potassium (which would be overand above the normal quantity which he did not know and which was amatter for medical opinion). His evidence on the point (at page 450 ofthe record) is as follows :—.
” Q. You cannot say whether the potassium found was extraneousto the normal potassium contents of the body ?
A. That will be a medical opinion.
Q.You cannot say ?
A. Yes. ”
As pointed out earlier, the potassium extraneous to the normalpotassium content even according to Dr. Fernando was 140 milligrams,i.e., less than the minimum of 176 milligrams referred to by the Analyst.The learned trial Judge himself, in the course of Dr. Fernando’s crossexamination, remarked (at page 623), “ His estimate of the potassiumin this case seems to be no more an expert’s estimate than one I canmake.”
We agree with the submission of the Counsel for the 1st accused-appellant that the large volume of evidence of these two witnesses onthis topic would have tended to mislead the jury and its effect wouldhave been damaging and prejudicial to the 1st accused-appellant.
Witnesses like Doctors and Analysts usually preface their evidencewith a list of their qualifications and experience (as they did in thiscase) and there is the danger that a jury would look upon anything saidby them as based on expert knowledge. Such a witness should not bepermitted to express an opinion on any matter in a field where he hasno expert knowledge, and if such an opinion has been expressed beforeit is found that it is outside his sphere of specialized knowledge, then wethink that a trial Judge should give a clear direction to the jury tocategorically disregard that opinion altogether. In this instance, thelearned trial Judge dealt with this evidence at some length, and invitedthe jury to consider whether they could not agree with that opinion..He said (at page 1013) :“As I told you, it is not expert testimony.
He has worked out sometning which you could have yourselves workedout. I have given you the figures and the question is, firstly, do youagree with Professor Fernando whose figure Mr. Ponnambalam did riotchallenge that this is a cominonsense, reasonable estimate ? That isall that Professor Fernando claims (it) to be although he found morearithmetically, he says this is only a rough estimate. It is arbitrary.”The opinion was, therefore, commended to the jury who were invited toform an opinion themselves on criteria which^as not scientific.
JUDGMENT OF THE COURT—The Queen v. Kularatne
£43
Wills, on Circumstantial Evidence, 7th Edition, says (at page 176)“ The reasonable principle appears to be that scientific witnesses assuch shall be permitted to testify only on such matters of professionalknowledge or experience as have come within their cognizance, or asthey have learned by their reading, and to such inferences from them orfrom other facts provisionally assumed to be proved as their particularstudies and pursuits specifically qualify them to draw; so that the jurymay thus be furnished with the necessary scientific criteria for testingaccuracy of their conclusions and enabled to form their own independentjudgment by the application of those criteria to the facts established inevidence before them. ” Here, an important part of the criteria wassuch that the experts themselves considered unworthy of recommenda-tion as a scientific fact. It was far too dangerous for the jury to takethese figures into account in arriving at any conclusion. Sodium arsenitewas eliminated on the ground that there was no colouring found. Agrochemicals, particularly weed killers, commonly contain this compoundand those substances are usually coloured, according to the informationthat Dr. Fernando had received from certain importers of these substances.But when the question was specifically put to him (at page 551) whetherhe could say that uhcoloured sodium arsenite could not be obtained inCeylon, he admitted that he did not know. White arsenic was eliminatedon the ground .that no “ particles ” were visible to the naked eye of theAssistant Government Analyst. No microscopic examination was made,and in this context, Dr. Fernando thought in one part of his evidencethat the. use of potassium arsenite was probable. Our attention wasdrawn to the real effect of Dr. Fernando’s evidence (at page 510) whichis as follows :—
Because from the very rough estimate that you have been ableto act on 730 is somewhat excessive ?
It is a little above what I would expect. It is possibfe that itcould have been used. I cannot say that it was by any meansused.”
He was referring to the use of Potassium Arsenite.
The learned trial Judge, dealing with this evidence, told the jury (atpage 1016) :“ That evidence, therefore, gentlemen, the evidence of the
Analyst and Professor Fernando leaves us only with this. That havingregard to the Analyst’s examination, the question for you, gentlemen,is, was it an efficient examination ? Was it the sort of examinationwhich would be done anywhere in any civilized progressive country ?Did he do such an examination ? If so, can you rely implicitly on him ?Only for this, not that it was potassium arsenite. He does not say soonly for this, that probably it was, that it could have been and it wasmore probable than the others.”
. In our view, the direction to the jury to infer from the evidence of thesetwo witnesses, that the use of potassium arsenite was more probable was,with respect, a misdirection, and it is impossible to say that the jury wap
“Q.
A.
544
JUDGMENT OF THE COURT—The Queen v. Kularatne
not vitally influenced to draw the conclusion that it was the 1st accused-appellant who supplied the arsenic. Counsel for the 1st accused-appellantalso complained that some evidence based purely on conjecture had beenplaced before the jury which must have influenced their verdict againsthis client. One of the bottles found in the dispensary (P23) contained13 to 14 grams of Li qua Arseni calis. There was no evidence as to whenthis liquid had been purchased except the 1st accused-appellant’s state-ment from the dock that it had been purchased in about 1950 and hadbeen used for mixtures that he had prescribed. The label on the bottle(P23) was a very old one. But on the assumption that this bottle wasfull on or about 9th of April a conjecture—it was really nothing more—was made by the Analyst that the amount of arsenic obtainable from thequantity missing would account for the quantity of arsenic found in theinternal organs of the deceased.
The evidence of Dr. Fernando in a field, where he was competent toexpress an opinion, was that the poison could have been taken shortlybefore, with, or shortly after, the mid-day meal. It was the case for theprosecution that the poison was contained in the food that the deceasedhad eaten that afternoon. To establish this, the prosecution relied veryheavily on the evidence of the Analyst that seven millionth of a gram ofarsenic was found on the plate from which the deceased is alleged to haveeaten her food. We cannot agree with the submission of learned CrownCounsel, when, in answer to certain important contentions relating tothis evidence made by the appellants, he said that the plate and thearsenic found on it were of little importance, because suicide (so heclaimed) had been excluded. The presence of arsenic on the plate wasprominently placed before the jury, both in the evidence and in thesumming up and would undoubtedly have influenced their verdict. Infact, the learned trial Judge referred to this point as the first basic fact inthe case.
There was evidence that the deceased had vomited several times—thatthe vomit matter contained arsenic—that her daughters Achini andSulari held vessels like tins and basins into which she vomited—thatthey helped her to the bath room and changed her soiled clothes. Thequantity of arsenic found on the plate was microscopic, and Counselsubmitted that the plate could have been contaminated in a hundreddifferent ways ”. Achini had stated in evidence that her mother usuallywashes the plate she eats from and places it on a rack. There was noevidence whatsoever as to who washed the plate on this day or whoplaced it on the rack or when that was done. According to Achini, itwas found on the rack next morning. It is quite clear that the learnedtrial Judge was strongly of the view that the minute trace of areeniomust have come from the food, and nowhere else. He told the jurythat the first thing a person does when he finishes eating is to wash hisfingers, and then wash the plate. Dealing with suggestions made by thedefence he told the jury that if the children got vomit on their fingers
JUDGMENT OF THE COURT—The Queen v. KuIarcUne
645
when helping their mother, they would wash their hands. Though hetold the jury that it was a matter for them to decide, he made his ownview clear. With all respect to that view, the learned trial Judge hadoverlooked the fact that there was no evidence at all as to who washedthe plate on that day or plaeed it on the rack, or whether it was placed onthe rack before the deceased started getting sick. All this was assumed.That is dear from this passage (at page 972):“ Now, gentlemen, in
regard to that matter, you will remember the evidence. The evidence isthat this plate had been washed, and one of the tasks which an old girl ofHoly Family and Ladies College had to do was to wash her plate. Well,ehe had toothed it and kept it on the rack. ” And, again, “ But if that platewas found exactly where it should have been where the mother had left it,is it a reasonable possibility—it is a matter for you to decide—is it areasonable possibility to think that somebody will touch that plate andthen go away, touch it, leave it and go away 1 That is a suggestion. ”As stated earlier, the learned trial Judge did tell the jury more than oncethat on this point, as on others, they alone were the judges of fact andthat this was a matter for them to decide. But in a case of circumstantialevidence, particularly one like this where the evidence (except of motive)is far from clear and unambiguous, the jury would be only too willing tofollow the Judge as to the inferences which they are told could reasonablybe drawn from the evidence. The suggestion by the defence that the'arsenic may have got on to the plate in some way other than the food,having regard to the circumstances, was severely criticised by the learnedtrial Judge. He told the jury (at page 975) “ Did she finish this operationof washing ? No. It is for you to ask yourselves whether it is a possi-bility which has been conjured up by a fertile imagination, whetherthere is any coxnmonsense, any real possibility, any real likelihood thatsuch things as are suggested could have any possibility that they happened.That is enough. If you think that such a possibility could have happened—you are the judges of fact—you hold in favour of the defence. ” In ourview, the direction to the jury to consider the possibility of the platebeing contaminated by some means other than the food served on it,only on the basis that the deceased had washed her plate and placed it onthe rack and that she had done so before she started getting sick, was amisdirection as it is unsupported by the evidence.
’ v
There was another contention relating to the plate (P7) raised by theCounsel for the appellants which cannot be lightly brushed aside. Theprosecution had to prove beyond reasonable doubt that the plate on whichthe Analyst found a trace of arsenic was the plate on which the deceasedhad her last meal. It was urged by the defence that this fact was hotproved. The evidence on this point is as follows : at the trial the Analystproduced the plate (P7) on which he found the trace of arsenic. Theplate had been brought to him on 18th April 1967 by Police ConstableBalasuriya whose deposition was read. The Police Constable had got italong with the other productions in the case from the Record-keeper ofthe Magistrate's Court whose deposition was also read. On 10th April41 – PP 006137 (98/08)
646
JUDGMENT OF THE COURT—TAe Queen v. Kularatne
Inspector Padawita had asked Achini for the plate on which hermother had taken her mid-day meal. The defence raised the objectionthat the Inspector’s evidence relating to the plate amounted to a state-ment made by Achini to him in the course of an inquiry under Chapter 12of the Criminal Procedure Code, and was inadmissible in view of theprovisions of section 122 (3). But we take the view that the fact that theInspector asked for the plate, describing what he wanted, and Achiniproduced one, is a circumstance which may lead to an inference thatAchini produced what she thought the Inspector wanted. At the trialthe plate produced (P7) by the Analyst was not shown to the Inspector.It was not shown to Achini either though other productions were shownto her. Its identity was left to be inferred. We wish to observe that in acriminal case the identity of productions must be accurately proved by thedirect evidence, which is available, and not by way of inference. Thereare many known instances where mistakes have been made in regard toproductions in cases. We have to face the unpleasant fact that due tolack of space and proper storage facilities in Magistrate’s Courts,productions in cases are piled up in tiny dilapidated rooms withoutorder or method. Though we have examined the evidence on the footingthat the trace of arsenic was found on the plate of the deceased, we mustagree with the contention of the defence that the evidence placedbefore the jury in regard to the identity of the plate was inconclusive.
At this point we might deal with certain other submissions made onbehalf of the 1st accused-appellant with reference to his subsequentconduct. The prosecution relied on three matters relating to suchconduct as indicative of guilt.
Firstly, there was the evidence of one Mrs. Nanayakkara that the 1staccused-appellant, who was at the Y. M. B. A. at about 6 p.m. on thatday, had, on receipt of a telephone message, left the place making aremark that his wife was vomiting. This remark was relied on as evidence•which pointed to guilt. There was also a remark which the 1st accused-appellant is alleged to have made to one Mrs. Gunasekera that he did notknow what the sisters were up to. The second remark could well beunderstood. As the learned trial Judge told the jury, the deceased’ssister’s visit was an unusual one and he had come to know by then thatthe police had come to his house. In regard to the remark about hiswife vomiting there was the evidence of Achini that when her mother wasvomiting upstairs she came down and told the 1st accused-appellant,who was seated at the dining table, that her mother was sick. She alsosaid in evidence that her mother “ continued to vomit ”. There is noevidence that the vomiting could not have been heard downstairs. Itwould indeed have been a very remarkable thing if the 1st accused-appellant did not know that his wife had been vomiting that afternoon.The learned trial Judge in his charge dealt with this matter in thefollowing way (at page 1034):“ But there is this other remark, as I
JUDGMENT OF THE COURT—The Queen v. Kvlaratne
547
told you, that the prosecution tells you that his knowledge that the wifewas vomiting is only explicable on the basis that he knew that there wassome reason why she should vomit. ” And, later, “…. it
(the prosecution) relies on these remarks which were made and it relieson the evidence and on the statement of the doctor which shows that he
4
could not have known from anybody—certainly I do not say could nothave known from anybody—certainly I do not say could not have known.There is no evidence that anybody told him about the vomiting, noevidence that from the downstair room in the front part of the house hewould have heard this lady vomiting in the back regions upstairs. Sothat the prosecution suggests that that remark, to put it at its highest Isuppose, is a suspicious matter, that he should have made that remark.It is one of the small circumstances which the prosecution says youshould add to that collection of which I spoke. ” In his statement fromthe dock, the 1st accused-appellant did not say that he had heard hiswife vomiting. One would not expect him to refer to such a thing insuch a statement. From the fact that there is no evidence that vomitingcould be heard downstairs, it has been assumed that it could not beheard. We think that the jury should have been directed—as thelearned trial Judge did in regard to the first remark—that on a properevaluation of the evidence, no inference at all could have been drawnagainst the 1st accused-appellant from this remark.
The next point was a telephone message, which a police constable saidhe received at about 4.65 p.m. from the 1st accused-appellant inquiringfor the A.S.P. or the Inspector. There is no record of that message orthe time at which it was received. The constable had said that heremembered the approximate time as a complaint had been made shortlyafter, relating to this same matter. The 1st accused-appellant, in hisstatement from the dock, had said that he had telephoned the policeat about 6.45 p.m.. But assuming that the constable was right, onecould hardly look upon this evidence as a circumstance from which onecould draw a reasonable inference pointing to guilt. The suggestionthat the 1st accused-appellant, having committed a crime, was trying tocontact the A.S.P. or one Inspector Elias, who was one of his many freepatients, in order to get some assistance from them is too far-fetched.In regard to this evidence the learned trial Judge said (at page 1031):“ I think Crown Counsel suggested—I am certainly not going to endorsethat suggestion that there was anything suspicious in the fact—that hewanted to speak to Elias, but there is this fact. Why did he telephone
at all ?• So, gentlemen, if you are convinced beyond
reasonable doubt that that * phone call was made, does it' not
suggest that the accused had some reason ?and the
prosecution suggests that the reason is that he had some knowledgeabout what was happening upstairs and that it was in that connectionthat he ’phoned.” Here again, we think that the jury might have beentold that it would be unfair to speculate on the reason for this calland draw any inference adverse to the 1st accused-appellant.
648
JUDGMENT OF THE COURT—The Queen v. Kuiaratne
On this point, it was further urged by the defence that a good deal ofinadmissible evidence was led which must have prejudiced the juryagainst the 1st accused-appellant.
A. S. P. Rajaguru of Ambalangoda, to use his own words, “ wasdirected to take charge of the inquiry ”, and, in fact, did so. On arrivingat the scene that night he questioned the 1st accused-appellant, who, itis alleged, told thiB officer that he (the 1st accused-appellant) had triedto contact Inspector Elias and the A. S. P., Galle, and that the telephonewires were out of order. (It was suggested in cross-examination, andin the statement from the dock of the 1st accused-appellant, that theA. S. P. had misunderstood him on account of an impediment in hisspeech.) It was submitted for the 1st accused-appellant that this was astatement made in the course of an inquiry under Chapter 12 of theCriminal Procedure Code to which the provisions of section 122 (3) wouldapply. Learned Crown Counsel contended that a police officer referredto in section 122 (3) was an officer in charge of a police station or someonedeputed by him as set out in section 121.(2). We did not think that anarrow interpretation should be placed on the words “ a police officer ”in section 122 (3). To do so would be to defeat the very purpose of thatsection. The officer in immediate control of a police station is usuallythe Inspector attached to that station, but there are other officers whoare, in one way or another, in charge of a police station in so far as theinvestigations are concerned, e.g., an Assistant Superintendent of Policeof the town, the Superintendent of Police of the Districts the Inspector-General of Police and his Deputies. Any officer in a police station isbound to carry out an order given by a superior officer, and all the pro-visions of the section can be defeated if a Superintendent of Police, forinstance, orders a particular officer at a station to carry out the investiga-tions. In the two cases cited to us, this point did not directly arisefor consideration. In Buddharakhita’s case1 it was held, obiter,that a police officer, who is not empowered to investigate cogniz-able offences under Chapter 12 may not legally act under that Chapterthough he is attached to the Criminal Investigations Department. InTambiah’s casea the Privy Council held that the protection ofsection 122 endures “ during the course of the investigation ” i.e., fromthe time when the investigation starts to the time when it ends andthe report is made under section 131 of the Criminal Procedure Code.In that case, too, the status of the officer investigating the crime did notarise. We are of the view, as stated earlier, that the term “ any policeofficer ” in section i^2 is not restricted to an officer in charge of a stationor one deputed by him. A statement made in the course of an inquiryunder this section can only be used for the limited purpose permittedby that section, vtz., to contradict the person making it if he subsequentlysays something different. It cannot be used to form the basis for aninference that the conduct of the person who made it was suspicious.
* (1962) 63 N. L. R. 433.
1 (1965) 68 N. L. R. 25.
JUDGMENT OF THE COURT—The Queen v. Kularatne649
Other evidence was then led to establish that the statement (assumingthat it had been correctly recorded) was untrue, and a number ofwitnesses was called to show that the telephone lines were not out oforder at that time. In our view, all this evidence was inadmissible,and its reception would have, undoubtedly, prejudiced the jury.
Thirdly, there was the fact that the 1st accused-appellant left forKondadeniya late on the previous night, met a priest there, from whomho got a talisman and returned home about 2 p.m. on the day inquestion.
As the learned trial Judge told the jury, the evidence showed that thiswas a family which believed in charms. The deceased, too, had madepreparations to get a,charm for herself at about this time. The inquiryin regard to alimony in the divorce case was approaching. CrownCounsel suggested that this trip was made by the 1st accused-appellantto provide an alibi for himself. If that were so, it is hardly likely that howould return to the scene so close to the time when the offence is allegedto have been committed; and to say that the plan assumed that thedeceased would go to her sister’s place as usual on that day and die there,is to think that though he was a doctor, he would not know how soon thepoison he had provided would act. However that may be, there was, onthis point, the evidence of Dr. Grero led by the prosecution rather earlyin the case which had not been referred to in the charge. According toDr. Grero, the priest whom the 1st accused-appellant went to meet hadcome to his residence at Galle and the 1st accused-appellant had met himthere between the 26th and 30th of March, 1967, so that the trip couldhave been arranged for that day at that meeting as stated by the 1staccused-appellant in his statement from the dock. The trip may perhapsbe looked upon as a suspicions circumstance, but certainly not one whichis inconsistent with innocence. The learned trial Judge told the jurythat it was “ a very strange thing that the 1st accused made this all-nightjourney on the day before the 9th April in order to get a talisman for hisprotection. ” He did not place the evidence of Dr. Grero and the state-ment of the 1st accused-appellant before the jury on this question. Wethink the direction on this point was inadequate.
At the hearing before us, Grown Counsel urged another matter, whichhas not been referred to at all in the summing up, as indicative of guilt.
In the course of his statement from the dock, the 1st accused-appellanthas said that the stock of Liquid Arsenic is kept in a large bottle (P23)and for convenience of dispensing poured into a small bottle (Pi 9). HieAnalyst has stated that the liquid in the larger bottle (P23) was less thanthe normal strength as it contained *8 per cent.- arsenic instead of 1 percent. He had also stated what the proportion of arsenic and potassium wasjn the smaller bottle (P19); there was slightly less of potassium. Assum-ing that he meant that the liquid in (P19) was of normal strength, we
550
JUDGMENT OF THE COURT—The Queen v. Kvlarcttve
think it would be unreasonable to draw an inference unfavourable to the1st accused-appellant. There was no evidence as to whether this liquidif kept, for instance, in a larger bottle which was open or ineffectivelyclosed would diminish in strength when part of the same liquid in asecurely closed small bottle would retain the normal strength. Ifindeed the prosecution relied on this difference in strength in the liquidscontained in the two bottles as having any significance, the mattershould have been probed further. They might, at least, have calledthe dispenser in whose custody these two bottles were. We think that itwould be unreasonable, from the difference in strengths, to draw theinference that the statement from the dock was false. Nor is it areasonable inference, as Crown Counsel suggested, that the arsenicsolution in (P19) had been procured at a different time and used to poisonthe deceased. In fact, the suggestion for the prosecution was as statedearlier, that some part of the solution in the larger bottle (P23) had beenused.
As regards the 2nd accused-appellant, there was evidence of motive,that she generally supervised the kitchen and ordered meals, that therewere bottles of bilin achcharu in her room, and that the 3rd accused-appellant, an old servant, slept in that room. It may be mentioned herethat the Analyst found no arsenic in the bilin achcharu in her room orin the fish or bilin achcharu found in the 3rd accused-appellant’s kitchen.There was no evidence at all of any overt act done by her (2nd accused)which the prosecution relied upon to suggest guilt.
We think that there was no sufficient evidence against the 2nd accused- .appellant from which a reasonable jury could draw an inference of guiltagainst her.
. At the conclusion of his argument, learned Counsel for the 3rd accused-appellant submitted that there were misdirections as to how the juryshould deal with circumstantial evidence. Certain passages read inisolation may be open to some criticism. But there are others which arequite impeccable. It is unnecessary to quote these passages in detail,as we are of the view that on a reading of the whole of the directionsrelating to circumstantial evidence, there is no misdirection on this point.Perhaps, the only prejudice that may have been caused was the failure.to direct the jury that each accused was entitled to have the case againsthim or her considered separately from the others. Learned Counsel forthe 3rd accused-appellant pointed out that the charge always assumedthat the 3rd accused-appellant knew that there was some foreign matter,either a charm or a poison, in the food she served. The possibility thatshe knew nothing of the presence of any foreign matter was not placedbefore the jury.
JUDGMENT OF THE COURT—The Queen v. Kularaine
651
Counsel for the 3rd accused-appellant next complained against themanner in which the indictment was amended. The indictment, in thiscose, was amended after both the prosecution and the defence wereclosed, and Crown Counsel had completed his address to the jury. Counselcomplained that there was no time for any of the accused-appellants toconsider whether they should now give evidence, or call witnessesor whether witnesses for the prosecution should be recalled andcross-examined—as the addresses proceeded forthwith.
We agree that before a charge is amended, particularly at a late, stagethe defence should be given an opportunity of making their submissionson the point (see Rodrigo u. The Quern1). Thereafter, if the amendmentis made, before the Judge decides whether or not to proceed withthe trial immediately under section 172 or 173 of the CriminalProcedure Code, the defence should be consulted again. But, in thisparticular instance, having regard to the nature of the amendment(the 2nd accused-appellant was dropped from the second and the thirdcharges)—and as no application had been made by the prosecution orthe defence under section 170 of the Criminal Procedure Code to examineany witness with reference to such amendment,—and having consideredthe submissions made by Counsel—we are of the view that no prejudicehad been caused to the appellants on this ground.
The next point raised by Counsel for the appellants related to thedirections given in regard to the statement from the dock of the 1staccused-appellant. It was a long statement in which the 1st accused-appellant protested his innocence, gave his version of some of the matterson which the prosecution had led evidence and said, inter alia, that he.never touched the bottles of arsenic in his dispensary, or that he tookpart in any plot to kill his wife.
Though there is no statutory provision for it, the right of an accusedto make an unsworn statement from the dock has been recognized by ourCourts for many years (see The King v. Sittambaram2) and is now partof the established procedure in our criminal courts.
In Buddharakhita’s case 8 it was held (at page 442) that, “ The rightof an accused person to make an unsworn statement from the dock is-recognized in our law. That right would be of no value unless suchstatement is treated as evidence on behalf of the accused, subject,however, to the infirmity which attaches to statements that are unswornand have not been tested by cross-examination. ”
We are in respectful agreement, and are of the view that such astatement-must be looked upon as evidence subject to the infirmity that
» (1962) 55 N. L. 22. 49.
• (1982) 63 N. L. 22. 433.
• (1918) 20N.L. 22. 257.
652
JUDGMENT OF THE COURT—The Queen v. Kularatne
the accused had deliberately refrained from giving sworn testimony, andthe jury must be so informed. But the jury must also be directed that,
If they believe the unsworn statement it must be acted upon,
If it raised a reasonable doubt in their minds about the case for the
prosecution, the defence must succeed, and
That it should not be used against another accused.
In this case the learned trial Judge referred to it in the early part of hischarge when dealing with the telephone call of the 1st accused-appellantto the police and said that the prosecution can make use of it. Buthe made no reference to it at all until the conclusion of his charge, whenCrown Counsel reminded him of that statement. Thereupon, he told thejury that this statement was not evidence, but that it can be takeninto account as a circumstance. In the manner in which it was dealtwith, it is likely that the jury thought that they were not called uponto pay any attention at all to that statement.
Another point raised by the appellants was that the learned trial Judgehad failed to explain the nature of the charges, particularly the charge ofconspiracy, to the jury. We have considered this submission, and thoughthe charge relating to conspiracy was not dealt with in much detail, weare of the view that the essence of the charge was adequately explained tothe jury.
There is, then, the complaint relating to directions in regard to thepossibility of suicide.
There is, of course, no burden on the defence to explain how thedeceased had taken poison. But, as in most cases, where death ensuesfrom a single dose of poison, the possibility of suicide arises. In thisinstance—as Counsel put it—it was “ a live issue in the case ”. Fromthe cross-examination of prosecution witnesses, particularly Achini andthe deceased’s sister Mrs. Suriyawansa, it was established that abouttwo years prior to her death, therq was a time when the deceased wasshouting from her room and from near her window—that she had beentaken to a nursing home, and treated by a psychiatrist who had to see herdaily—and that ultimately she had to be given what is known as “ shocktreatment It was also proved that within about a couple of monthsof her death, she herself had been in fear of a “ nervous breakdown ”—a term often used to describe mental state rather than a physical illness.It is clear from the record that the learned trial Judge was very stronglyopposed to any suggestion of suicide. But, as a matter of law, theprosecution had to exclude, beyond reasonable doubt, that possibility; andwhether they had done so or not was a question of fact which the juryhad to decide. It is not a question that could be decided by an admissionor a concession by one or more of the Counsel appearing in the case. Inthe first part of his charge relating to this matter the learned trial Judge
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categorically withdrew this issue from the jury. He said (at page 977):“ Now, a great deal of time and my patience, I think, was spent onevidence about mental depression, delusion, hallucination and so on.Mr. Ponnambalam has explained, quite rightly, that it was the duty ofthe defence to probe the possibility of suicide.
Court: Mr. Ponnambalam, cofreot me if I am wrong. (Apparently, theDefence Counsel remained silent.)
I think he has now conceded that suicide is out in this case.I will not, gentlemen, therefore, repeat all the reasons which CrownCounsel has mentioned against the suicide theory, but there are one ortwo matters that struck me, her conduct after this meal, her statement toher sister, her urgency to be taken to the hospital; she Baid so in so manywords, * If I am taken to the hospital quickly, my life may be saved. *As I said, as the matter is not really in dispute, I do not propose to spendmore time on it, but no doubt, gentlemen, you will realize that there is noquestion in this case that this lady was determined to live; she wasdetermined to live meaning, fight for her life, for her living conditions,for her status and for her children. So, there ia no question of suicide.Bear that in mind. ”
It was an opinion on a question of fact very strongly expressed, as thelearned trial Judge was entitled to do, but, with much respect, we thinkthe passage contained a clear misdirection. The learned trial Judgehimself had realized this at a later stage in the charge, for an effort hasbeen made to correct this error. But in doing so, the learned trial Judgereferred to all the grounds on which the prosecution sought to excludesuicide, and made no reference at all to a single item of evidence relatingto the mental instability of the deceased which formed the basis of thesuggestion. He said (at page 1038): “ It is the duty of the prosecutionto exclude suicide affirmatively. I think I told you that the matter hadbeen conceded, but nevertheless there is a burden on the prosecution toexclude suicide. The prosecution has sought to do that by saying thereis evidence upon which Crown Counsel says: ‘ Here was a lady who wasdetermined to live. * You remember she had made arrangements to godown to Colombo to interview her lawyers. She was taking a smallgift for Mr. Thiagalingam. She had arranged to get an amulet or talis-man for herself. She said, on what turns out to be her death-bed, ‘ Takeme to hospital so that my life can be saved. ’ Perhaps Mrs. Suriyawansa,to her lasting regret, might be thinking that if not for this unfortunatefact of a divorce action, this lady might have been quickly removed andwe would not be sitting here if her life was indeed saved. I thinkgentlemen, you will have no difficulty in excluding suicide. ”
It is impossible to say that this passage would have removed the effectof the earlier misdirection. Indeed, it is most probable that in theirdeliberations, the jury gaya, no consideration at all to the possibility of
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JUDGMENT OF THE COURT—The Queen v. Kularatne
suicide, and this undoubtedly would have greatly influenced them toaccept the third theory and the evidence of Achini.
– Our attention was drawn by Crown Counsel to the decision in Plomp v.The Queen1. In that case Plomp was charged with the murder of hiswife by drowning her. Dixon, C.J., dealing with the facts in that case,said that, M it would put an incredible strain on human experience if
Plomp’s evident desire to get rid of his wife at that juncture
were fulfilled by her completely fortuitous death Crown Counselsubmitted that those remarks were applicable to the facts of this case.
We cannot agree. The facts in that case can easily be distinguished.Menzies, J. set out the facts, which are shortly as follows : The deceasedmet with her death when she was in the sea alone with her husband atdusk. There was evidence that the surf was not dangerous, and that thedeceased was a good swimmer. There were no eye-witnesses and theonly account of what happened was given by the husband- He gave twoversions. One was that when he and the deceased were about waistdeep in the sea he suddenly felt an undertow which swept him off hisfeet; another version was that a wave struck him and knocked himdown and he saw his wife “ sucked under a wave ”. He went to her aidbut was only able to slip his hand in the shoulder strap of her bathingcostume which broke, and he lost sight of her. When her body was found,the bathing costume was hanging down with both straps unbuttoned.The only mark on the deceased’s body was a superficial abrasion on theforehead which could have been caused by contact with the sand.There were no marks on Plomp’s body. The medical evidence showedthat she had been breathing when she was drowning and that death was due-to asphyxia which would probably have taken 4 to 5 minutes. Havingset out these facts, Menzies, J. said, “ Were what I have just statedthe only evidence, I do not think, that it would have sufficed to warrant
the appellant’s conviction for murder” He then dealt with the
other evidence referred to as “ motive ” but which went beyond that.It was proved that Plomp’s statement that he was very happily marriedwas false, that he had formed an association with a young woman, thathe had told her that his wife was dead, and a few days before his wife’sdeath he had introduced the young woman to one of his children as their“ new mummy ” ; that a day or two after his wife’s death, he had madearrangements to marry the young woman and when the Registrar-Generalrefused to perform the ceremony before the inquest on his wife’s death hehad taken the young woman to live in his house as his mistress *, he hadlied about their relationship and had got her to be to the police aboutthat relationship. He had told the Minister, who objected to his marryingthe young woman, that he was not concerned about the inquest—thatthe police were satisfied that the drowning was accidental—and added,“ I am the only witness to the drowning, and if I claim privilege and
1 (1963) 110 Commonwealth Lavez$eporte 234.
JUDGMENT OF THE COURT—The Queen v. Kularatne
555
refuse to give evidence, that is the end of the inquest. ” It was withreference to these facts that the remarks quoted above were made.We think that the facts in this case are quite different.
Quite apart from the misdirections referred to above, which in ouropinion must have prejudiced the appellants, we are unanimously of theview that the verdict of the jury is unreasonable, and in any event thatit cannot be supported having regard to the evidence. We havereached this conclusion on the basis that there was a case to go beforethe jury.
Lastly, there is the question whether the learned trial Judge shouldhave given a direction to the jury at the close of the case for theprosecution under section 234 (1) to return a verdict of not guilty. That.section casts a duty upon the trial Judge to direct the jury to acquit, ifhe is of opinion that there is no evidence that the accused has committedan offence. This provision is in accordance with the principle under-lying a criminal trial by judge and jury that matters of law are for theJudge to decide and matters of fact for the jury. It does not appear tous to be a departure from that principle. It has always been consideredthat the question whether there is no evidence upon an issue is a questionof law. Thus, in cases where an appeal is given on a matter of law, aplea that there was no evidenoe to support a determination is alwayspermitted to be raised as a question of law. Whether there is sufficientevidence or whether the evidence is reasonable, trustworthy or conclusive,or, in other words, the weight of evidence is a question of fact. Accord-ingly, the Judge has to decide whether there is evidence upon the differentmatters which the prosecution has to prove in order to establish theguilt of the accused. It is for the jury to decide whether those mattersare proved by such evidence and guilt established. Thus, in a case,which the prosecution seeks to prove by direct evidence, the Judge has todecide whether there is evidence upon the different matters required tobe proved to establish the commission of the offence and the jury has todecide whether it believes that evidence and whether the evidence acceptedby them establishes those matters to their satisfaction, hi a case ofcircumstantial evidence, the Judge has to decide whether there is evidenceof facts from which it is possible to draw inferences in regard to thematters necessary to establish the guilt of the accused. It is for the juryuo decide what facts are proved and whether it is prepared, in thecircumstances, to draw from them inferences in regard to guilt andwhether in all the circumstances those inferences are the only rationalinferences that may be drawn or are irresistible inferences.
It appears to the majority of us, there was, in this case, evidenoe .offacts from which a jury may possibly have drawn inferences in regard tomatters necessary to establish guilt of each of the accused. The majorityof us are, therefore, of the view that the learned trial Judge was right in
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Don Sirisena v. Siriwardena
not giving a direction under this section to the jury to acquit the accusedat the end of the prosecution case.
There still remains the question whether the inferences that the juryappears to have made are the only rational inferences that could havebeen drawn in the circumstances or whether they are irresiatible inferences.We are unanimously of the view that the material placed before the juryfell far short of evidence on which a reasonable jury could have concludedthat the only rational inference that could have been drawn was one ofguilt. Accordingly, we have taken the view that the verdict of the jurycannot be supported having regard to the evidence.
We quash the convictions and acquit the appellants. '
Appellants acquitted.