061-NLR-NLR-V-59-THE-QUEEN-v.-E.-H.-ARIYAWANTHA.pdf
BASNAYAKB, C.J.—The Queen v. Ariyawnnlha
241
[Ik the Court of Ckimixal Appear]
1957 Present: Basnayake, C.J. (President), H. N. G. Fernando, J., and■' L. W. de Silva, A. J.' THE QUEEN v. E. if. ARIYAWANTHA .
Appeal No. 59 of 1957 with Application No. 66 of 1957
S. C. 27—31. C. Matara, 42,113 ■
Accomplice—Acts tchic/i make a witness an accomplice.
An accomplice is a guilty associate in tho crime with which the accused ischarged. Therefore, where tho accused is charged with murder, evidenceshowing that a witness helped in disposing of tho body of the deceased after thodeceased was already dead is not sufficient to prove that the witness was anaccomplice.
lies judicata—Applicability of rule to criminal proceedings—Common intention—^Misdirection,'
Tho maxim Ucs judicata pro verilatc accipilur is no less applicable to criminal-than to civil proceedings.
A, 13 and C were indicted with the offence of murder. A was found guilty of.murder, while B and C were found guilty of causing simple hurt and culpable •
. homicide not amounting to murder, respectively. A appealed against hisconviction and a retrial was ordered. At tho retrial A was once more foundguilty of murder. A thereupon appealed.
Held, that at the retrial the prosecution was bound to present its caso on tho•basis that tho unreversed part of tlio verdict at tho earlier trial was correct.
’It was not open, therefore, to the trial Judgo to direct tho jury on the basis
that thero was a common intention on tho 2Jart of A, B and C to commit murder. •
A…
tXPPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Colvin R. de Silva, with 31. L. de Silva and J. N. David (Assigned), forthe Appellant.'"
A. C. Allcs, Acting Deputy Solicitor-General, with V. S. A. Pulle-nayegum and E. II. C. Jayaiileke, Crown Counsel, for the Attorney-General.
Cur. adv. vull.
August 26, 1957. Bas.vayake, C.J.—-
The appellant, Egoda He wage Ariyawantha, was along with two othersindicted with the offence of murder of one Talpawila Hewa KankanangePiyadasa. The appellant was found guilty of the offence of murder andsentenced to death while the two others were found guilty of the offenceof voluntarily causing simple hurt and culpable homicide not amountingto murder, respectively. The appellant appealed against his conviction11lix
2J. N. B 21504—1.503 (2/5S)
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BASXAYAKJ3, C.J.—TJte Queen v. Ariyatvantha
and. it was quashed on the ground of non-direction’ on a question of lawamounting to misdirection and a retrial was ordered.. At the retrial the' appellant was once more found guilty of the offence of murder andsentenced to death. He now appeals from that conviction. ' •
The appeal is pressed on the following grounds :—
(а)Tiiat the witness Allison on whose testimony the prosecution almost
entirely rested is an accomplice,
(б)That his evidence which relates to the offence committed by the
appellant is uncorroborated,
That the learned Judge was wrong in directing the Jury to find
against the appellant on the ground of common intention,
That the evidence does not disclose that it was the act of the
appellant that caused the death of the deceased,
That tlio only offence disclosed against the appellant is the offence
of voluntarily causing hurt with a knife,
(/) That the learned Judge has misdirected the Jury on the failure ofthe appellant to give evidence on his own behalf.
The evidence discloses that tho witness Allison held the legs of thedeceased when his sarong was being removed and helped the three accusedto carry the body of the deceased from the house in which he was killedto the river where they tied it to a canoe. Allison in answer to the ques-tion “ Did you also assist them to carry tho body ? ” said : “ I was askedto help in carrying the bod}'. Through fear I followed and pretendedthat I was helping. ” Tho request to help was made by the ajrpellant.Under cross examination Allison gave the following evidence :—
“ GOS. Q. To remove the clothes did you help ?
A. No.
GOO. Q. You did nothing at all ?
A. At that moment I was stricken with fear. They askedme to help and I pretended to help but I did nothing.
G10. Q. In what way did you pretend to help ?
A. I remained there. To their appearance I was almostready to help in anything.
Gil. Q. You also got on to the verandah 1. –
A. Yes..
GI2. Q. You went right up to the man ?
A. Yes. Through fear whcii they asked me to later. …
To Court: Q. Not lator, at that time ?
A. At the time the man was being stripped ofhis clothes I was asked to help and through ■fear I helped.
Q. You touched the body, that is tho question ?
' A. Yes.
Q. What part of the body ?
A. I held the legs. ”
BASXAYAKE, C.J.—The Queen v. Ariynu-antha
243
Now iho burden of proving a witness to be an accomplice, for flicpurpose of inducing the jury to presume that ho is unworthy of creditunless coiToborated in material particulars, is upon the party alleging it. .It is for the jury to determine whether a witness is in truth an accomplice.If they aro in doubt and unable to decide, the witness should not botreated as an accomplice. If they form the view that he is an accomplice,they have to consider the further question whether in the circumstancesof the case before them they should presume him to be unworthy ofcredit unless he is corroborated in material particulars.
Learned counsel contended that the acts which the witness committedmake him an accomplice. We aro unable to agree. An accompliceis a guilt}' associate in the crime with which the accused is charged. Theoffence alleged against the appellant is murder. The evidence showsthat at the time Allison held the legs the deceased was dead and thatthough the man’s private parts were cut off by the appellant after Allisonheld the legs that act did not cause his death. Similarly when Allisonpretended that he was helping to carry the body to the river it was thecorpse that lie helped to carry. Apart from the fact that Allison saysthat he did whatever ho did because ho was overawed by fear, neitherof the acts lie performed can be said to amount to guilty participationin the offence of murder. It was therefore not open to the jury to presumethat lie was unworthy of credit unless corroborated in material particulars.They were free to assess his evidence in the same way that they wouldhave assessed the evidence of any other witness free from the taint ofguilty participation in the crime charged.
We now come to the ground of appeal based on the wrong directionon the law as to common intention. The evidence from which the jurywere invited to infer a common intention to murder was a conversationbetween Dairis, the second accused at the first trial, and Arnis, the thirdaccused at the same trial, which the present appellant, who was the firstaccused at that trial, may have lieard. It was after that conversationthat Arnis invited him to his house when the appellant wanted to go tohis own house. It is unnecessary for the purpose of this judgment torefer in detail to what happened at Arnis’s house ; but it is sufficient tostate that the deceased was inside the one-roomed house with Arnis’s wifeand some time after they had knocked at the locked door he came outof it and, under (he cover of darkness, got on to a cot which was in theverandah. Noticing' the deceased on tho cot by the aid of a lamp Arnis’swife Amarawathie had placed on a chair in the veraijdah after he cameout of the room, the appellant went up to him, pulled out a kris knifofrom his waist and stabbed him on the chest. The deceased raised acry of “murder” and was thereafter' silent and motionless. Arnisthen came up and stabbed the man a number of times all over the bodyabove the waist and Dairis drew- a knife across the man’s body, armsand legs. Thereafter the appellant cut off the man’s private parts.
It was submitted on behalf of tho appellant that, as the evidenco doesnot disclose that it was the injury inflicted by the appellant that causedthe death of the deceased, the only basis on which the jury could havereturned a verdict of murder was that tho act of the appellant was com-mitted in furtherance of the common intention, of all to commit the offence ■
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' BASNAYAKE, C.J.—The Queen v. Ariyawahtha
of murder. It was further submitted that as tlie jury acquitted the 2ndand 3rd accused of the offence of murder and thereby rejected the evidenceof common intention at the last trial it was not open to the prosecutionto present the case against the appellant (who was the first accused at thelast trial) at his retrial nor to the learned Judge to direct the jury on thebasis that the evidence disclosed a criminal act committed by the appel-lant in furtherance of the common intention of all to commit murder.In support of his submission counsel referred us to the following observa-tions of the Privy Council in the case of Samba-sivain r. Public Prosecutor,Federation of Malaya 1 :*.
“ The effect of a verdict of acquittal pronounced by a competentcourt on a lawful charge and after a lawful trial is not completely statedby saying that the person acquitted cannot be tried again for the sameoffence. To that it must be added that the verdict is binding and con-clusive in all subsequent proceedings between the parties to theadjudication. The maxim ‘ Res judicata pro veritatc accipitur ’ isno less applicable to criminal than to civil proceedings. Here theappellant having been acquitted at the first trial on the charge of havingammunition in his possession, the prosecution was bound to accept thecorrectness of that verdict and was precluded from taking any stepto challenge it at the second trial. ”
The maxim cited in the reasons of the Hoard delivered by Lord MacDermott is one that has not been applied before in a criminal case in thiscountry nor are we aware of any case in which it has been applied incriminal proceedings in England. But that is no reason why we shouldrefrain from applying it in a suitable case. The instant case is one such.The maxim is not in conflict with the provisions of our statute law whichgovern criminal proceedings and has the merit of sound good sense tocommend its application to criminal proceedings. It is of Roman Laworigin (Digest L. Tit. XVII, S. 207) and is well known to both the RomanDutch (Voet Bk XLII, Tit. I, S. 29) and the Scots systems of Law (Stair—Moore’s Edn—Yol. II, S. 554 ; MacDonald on Criminal Law of Scotland,51Ii Edn. pp. 272-273) though instances of its application to criminalproceedings are rare. It will lead to queer results if in a case such asthat before us the prosecution is not bound to accept as correct so muchof the verdict at the previous trial as remains unroversed and is permittedto challenge it. IVc are of opinion that the prosecution was bound topresent its case on the basis that the unreversed part of the vei'dict at theearlier trial was correct and it was not open to the learned trial Judge todirect the jury on the basis that there was a common intention on thepart of all the accused to commit murder.
As this disposes of the appeal it is unnecessary to consider the othergrounds urged on behalf of the appellant.
The only question that remains for us to decide is whether we shouldallow the appeal and direct a judgment of acquittal to .be-entered orinstead of allowing the appeal substitute under section G (2) of the Courtof Criminal Appeal Ordinance for the verdict found by the Jmy a verdictof guilty of the offence committed by the appellant and of which the
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Pier la t*. Wilbert
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jury could, on the indictment, have found the appellant guilty. Toenable us to apply this provision we must be satisfied on the finding of thejury before us that they must have been'satisfied of facts which provehim guilty of the offence which we mean to substitute, Learned counselfor the appellant suggested that the verdict should be one of voluntarilycausing hurt by means of nil instrument for cutting punishable undersection 315 of the Penal Code while learned counsel for the Crownsuggested that the verdict should be one of attempted murderpunishable under section 300 of the Penal Code..
The jury appear to have been satisfied that the accused stabbedthe deceased in the way described by Allison. But beyond that there isnothing in their verdict which indicates to us that they were satisfiedof the existence of the ingredients of the offence of attempted murder.The submission of learned counsel for the Crown must therefore borejected.'.
We accordingly substitute a verdict of guilty of the offence of volun-tarily causing hurt by means of an instrument for cutting, punishableunder section 315 of the Penal Code.
As to the sentence, we do not think that the mitigating circumstancesthat availed the 3rd accused Arnis who at the previous trial was convictedof culpable homicide not amounting to murder and sentenced to undergoone year’s rigorous imprisonment exist in the case of the appellant. Hecannot therefore be dealt with as leniently as Arnis.
We accordingly impose on the appellent a sentence of one year’srigorous imprisonment. We direct that the period between the date ofthe decision of the last appeal and the date of t his Judgment be deductedfrom his sentence.
Conviction oltered.