THE QUEEN v. E. R. MATHEW DE SOYSA

028-NLR-NLR-V-67-THE-QUEEN-v.-E.-R.-MATHEW-DE-SOYSA.pdf


(In the Court of Criminal. Apfbal]
Present: Basnayake, C.J. (President), Weerasooriya, S.P.J.,and Abeyesundere, J.THE QUEEN v. E. R. MATHEW DE SOYSAAppeal No. 53 of 1963, with Application No. 54S. C. 184—M. C. Kanuwana, 4065
Trial before Supreme Court—Summing-up—Failure of Judge to refer to items
of evidence favourable to accused—Misdirection.
Where, in a trial before the Supreme Court, the Judge gives prominencein his summing-up to the various matters which, if they stand by themselves,inferences adverse to the accused may be drawn, he should also remind theJury of other connected items of evidence which are in favour of the accused.His omission to do so would convey to the Jury a misleading impression asto the strength of the case against the accused, and would amount tomisdirection.
.A-PPEAL against a conviction in a trial before the Supreme Court.
Colvin R. de Silva, with A. C. M. Ameer, Varuna Basnayake andHannan Ismail (assigned), for the accused-appellant.
H. A. G. de Silva, Crown Counsel, for the Crown.
Cur. adv. vult.
August 23, 1963. Weerasooriya, S.P.J.—
The appellant was tried at the Assizes held at Negoinbo on a chargeof having committed murder by causing the death of one Sidney Guna-sekere. By a majority of 6-1 the Jury found him guilty of the offenceand he was sentenced to death. He has filed this appeal and applicationagainst his conviction and sentence. At the conclusion of the argumentbefore us we set aside the conviction of the appellant and the sentencepassed on him, and directed that judgment of acquittal be entered inhis favour. We now set out the reasons for our order.
The deceased was at the time of the murder residing on a land whichabutted the Colombo-Negombo Road. The appellant and his familylived about a quarter mile away. Ho had a garage adjoining thedeceased’s residence where he carried on the business of motor car repairs.Car sales were regularly conducted there on Sundays, on such occasionsthe appellant being assisted by one Leopold Mendis. The land on whichthe garage stood also extendod up to the main road, on the Colomboside of the deceased’s land. Next to the garage, but separated offby a fence, was a row of rooms in the first of which (nearest the garage)
there was the shop of a florist and an undertaker, while in the secondroom the appellant ran a provision boutique which was looked after bytwo of his employees Rupasinghe and Nandasena.
Adjoining the deceased’s residing land on the Negombo side is thehouse where the prosecution witness Catherine Mendis lived with herhusband and a grown up son. The evidence of Catherine Mendis isthat when she was asleep on the night of the 6th May, 1962, she wasawakened at about 9.30 by the banging of doors and windows and someone calling out “ Mahataya, Mahataya She then came on to thecompound of her houso and looked in the direction of the deceased’shouse and saw the appellant and Leopold Mendis going round it, bangingthe doors and windows. They were calling out “ Mahataya, mahatayaThere appeared to be no one in the house, and the appellant and LeopoldMendis then went towards the appellant’s garage. Catherine Mendisclaimed to have identified them by the light of an electric lamp whichwas fit in the verandah of the deceased’s house. There was also a bigstreet lamp in front of her house the fight from which fell as far as thegarage. About a quarter or half an hour later the appellant and LeopoldMendis again went to the deceased’s house. They switched off theelectric fight in the verandah. They again banged at the doors andwindows and also at the trellis on the side towards the house of CatherineMendis. Part of the trellis gave way and the appellant and LeopoldMendis entered the house through the damaged portion. After thatCatherine Mendis heard articles being broken inside. They then openedthe front door and came out of the house and returned towards thegarage. A little while later the deceased came in his car and halted iton the road between the entrance to his land and the entrance to thegarage premises. He got down from the car and walked up to his house,which was in darknoss, and was seen to flash his torch inside it. There-after he came out and went in the direction of the car, when the appel-lant and Leopold Mendis set upon him, and assaulted him. The appel-lant is said to have struck the deceased with a weapon like PI whileLeoplod Mendis gave him a blow with a torch. Then the} dragged himtowards the garage where they subjected him to a second assault.Leopold Mendis appears to have struck the deceased at least one blowon that occasion too. The deceased fell, and the appellant alone conti-nued to deal him some more blows with the weapon which he had.Each of the assailants then got into a car and went in the direction of theKandana Police Station.
After they had gone Catherine Mendis went back to her house. Herhusband and her son were asleep. She got into bed and was cogitatingon what she had seen, when the deceased’s son Malcolm, a young man ofabout 28 years, knocked at the door of her house. On her opening thedoor he told her “ Father has been murdered, come let us go and seeHe also told her that when returning home he heard of the assault.Catherine Mendis says that as she was frightened to leave her house,she asked Malcolm to go to the Police Station. She did not tell Malcolmthat she had seen the assault. Before Malcolm could go to the PoliceStation the Police arrived at the scene as a result of certain information
given by the appellant at the Kandana Police Station. CatherineMendis was questioned by the Police only on the morning of the 7thMay. She admits that in her statement she said that she did not see theassault. Under cross-examination as to why she said so she firstexplained that it was due to fear because on the afternoon of the 6thMay she was threatened with death by the younger brother of herdaughter’s husband, who is also related as a cousin to the appellant.When it was pointed out to her that even if such a threat was utteredit was over a land dispute in which the appellant was in no way involved,she came out with the further explanation that on the morning of the7th May one Peduru Alwis, an uncle of the appellant, had threatenedher not to give evidence. She was unable to say whether PeduruAlwis knew at the time that she had seen the assault on the deceased.
Leopold Mendis was produced by the Police as a suspect before theMagistrate on the 8th May, 1962, and remanded, but one week later onthe application of the Police he was released from custody. On the sameday the Police filed a report under Section 148 (1) (6) of the CriminalProcedure Code charging the appellant and Rupasinghe with the murderof the deceased. Rupasinghe was discharged in the course of the non-summary inquiry. The name of Catherine Mendis was, for obviousreasons, not listed as a witness in the Police report. In her absence, it isnot clear on what evidence the Police relied when they charged Rupa-singhe as well as the appellant with the murder of the deceased. Onthe 19th May, 1962, she went to the Police Station and volunteered astatement and she subsequently gave evidence at the non-summaryinquiry. She was the only prosecution witness called at the trial whoclaimed to have seen the assault on the deceased.
Malcolm Gunasekere, who was also called as a witness for the prose-cution at the trial, stated that on the night of the murder he and thedeceased were the sole occupants of the deceased’s house, that in theevening they went to see his aunt who lived close by and that the deceasedreturned home ahead of him. Malcolm left his aunt’s house some timelater and was walking home when he got information at the Welisarahospital gate about the assault on his father. He then proceeded alongthe road until he came up to where his father lay fallen. He knockedat the undertaker’s shop but as there was no response he went in theother direction and knocked at the door of Catherine Mendis’ house.When she opened the door he told her that his father had been murderedand she asked him to go to the Police Station. When he was about togo to the Police Station a Police jeep arrived with the Police.
One of the matters which the prosecution hoped to establish by callingMalcolm was the motive for the accused to have killed the deceased.But Malcolm did not give the evidence expected of him. On the con-trary, he was definite that the appellant and the deceased were throughouton the best of terms. In cross-examination it was put to him that thedeceased had been previously assaulted by others who were not welldisposed towards him. He admitted that the deceased had beenassaulted once, but said that the incident took place a long time ago.
It was, however, elicited by the defence from Dr. Udawatte, whoperformed the post mortem examination on the body of the deceased,that a few days before the 6th May, 1962, the deceased was admitted tothe hospital with a history of having been assaulted. There is noevidence as to who assaulted the deceased on that occasion. Apparentlythe fatal assault on the 6th May, 1962, took place within a day or twoafter the deceased was discharged from hospital.
Among the injuries which the deceased sustained as a result of theassault on the 6th May, 1962, were several of a non-grievous nature.Two of them consisted of a series of parallel contusions which Dr. Uda-watte thought could well have been caused by blows with PI, which isdescribed as an iron steering rod one end of which was grooved. Thefatal injuries were a contusion of the scalp, two inches in diameter onthe back of the head, with a fracture of the occipital bone and haemor-rhage over the membranes covering the brain, and a large contusion onthe left side of the chest underlying which there were fractures of the6th, 7th, 8th and 9th ribs, haemorrhage round the area of the heart,contusion of the lower lobe of the left lung, contusion of the wall of thestomach and diaphragm and laceration of the spleen and the left kidney.
Catherine Mendis stated in her evidence that although she saw theappellant strike the deceased as many as ten or twelve blows with aweapon like PI, she was unable to specify on which part of his body anyblow alighted. She also said that Leopold Mendis gave the deceasedtwo blows with the torch which he had, that the blows were dealt fromin front of the deceased and one of them alighted on the face. In theopinion of Dr. Udawatte the contusion and fracture on the back of thedeceased’s head could have been caused by a blow with a torch. Fvenif the blow dealt by Leopold Mendis which alighted on the deceased’sface could not have caused the injury on the back of his head, there wasone other blow dealt by him which could have accounted for that injury.Dr. Udawatte was not questioned whether such an injury could have beencaused by an assailant standing in front of the deceased. In the absenceof an opinion to the contrary from the doctor, there would appear to beno reason for*excluding the possibility that a blow dealt by LeopoldMendis had caused that injury. As for the larger contusion on the leftside of the deceased’s chest and the underlying internal injuries, Dr.Udawatte said that they could have been caused with PI, but he seemedto think it more probable that they were caused by repeated blows witha fist or by the deceased having been trampled on while he lay fallen.If any weight is to be attached to this opinion, it would appear that theappellant was not the person who caused these injuries, for CatherineMendis did not say that the assault on the deceased by theappellant was carried out by any means other than a weapon like PI.In determining the responsibility of the appellant for the fatal injurieson the deceased, the Jury had before them the evidence of CatherineMendis as to the part played by Leopold Mendis in the assault, whichevidence they were under a duty to consider, notwithstanding that thePolice had elected not to proceed against Leopold. At the trial theprosecution sought to hold the appellant responsible for the fatal injuries
on the deceased on the footing that they were inflicted by the appellantand not by Leopold Mendis. This being the case which the appellantwas called upon to meet, it must be assumed that the verdictof the Jury finding the appellant guilty of murder was returned on thatfooting, i.e., they found as a fact established beyond reasonable doubtthat the appellant by his own hand inflicted the fatal injuries on thedeceased. It is difficult to understand how the Jury could have arrivedat such a finding, unsupported as it is by the evidence of CatherineMendis and also the opinion expressed by Dr. Udawatte as stated earlier.
The verdict of the Jury was challenged by counsel for the appellantat the hearing of the appeal, not only on the ground that it wasunreasonable, but also on grounds of misdirection by the trial Judge.We do not think it necessary to deal with all the grounds of misdirectionin regard to which submissions were addressed to us. There can beno doubt that the case for the prosecution contained many infirmitieson a consideration of which the Jury could well have returned a verdictof not guilty in favour of the appellant. They were, the generally un-satisfactory evidence of Catherine Mendis, her delay in coming forwardas a witness after having in the first instance denied any knowledge ofthe assault on the deceased, the absence of a motive for the appellant tohave assaulted the deceased and the fact that a few days prior to the6th May, 1962, the deceased had been the victim of an assault by someunknown person or persons.
In discussing the question of motive the trial Judge rightly told theJury that the Crown had failed to prove the motive which it set out toprove. But in this connection he referred to the evidence of MalcolmGunasekere that the deceased carried on the business of selling secondhand cars, and to the appellant’s evidence that he too carried on asimilar business at his garage on Sundays and that on the evening of6th May, 1962, which was a Sunday, there had been such a sale. Inregard to this evidence the Judge stated as follows :—
“ Now, Gentlemen, the Crown has not established any motive,but the Crown suggests could it be that outwardly the accused and thedeceased were friendly, but they are rival car dealers. On the eveningof this day till 6.30 there was a car sale, the car sale conducted by theaccused in which he was assisted by Leopold Mendis. Did somethinggo wrong in this car sale which made the accused suspect that the deceasedhad something to do uoith that ? That only remains a suggestion andthere is no proof”
This suggestion is based on the following propositions—(a) that there wasrivalry between the deceased and the appellant over car sales ; (b) thatthe car sale held by the appellant on the evening of the 6th May, 1962,was not a success ; and (c) that the deceased was in some way responsiblefor its failure. There is not an iota of evidence in support of any of thesepropositions, nor were they even put to the appellant in cross-examina-tion when he gave evidence on his own behalf. In the circumstances.
if Crown Counsel suggested such a motive for the consideration of theJury, as the above quoted passage from the summing-up indicates, itrepresented nothing more than a figment of his imagination, and theonly direction which the Judge should have given to the Jury regardingthe suggestion was not to pay any attention whatever to it. In ouropinion, the omission to do so amounted to a misdirection.
Malcolm Gunasekere stated in his evidence-that a short while afterhe arrived at the spot where the deceased lay fallen, which was between11 p.m. and 12 p.m., the appellant too came there, that he asked theappellant why he had killed the deceased, that the appellant replied“ I do not know ” and abruptly left the place. Seeing that accordingto Malcolm there was “ no earthly reason ” for the appellant to haveassaulted the deceased, it is not clear why such a question should haveheen put to him. At the trial much seems to have been made by theprosecution of the appellant’s reply as amounting to an admission ofguilt. The learned trial Judge asked the Jury to consider whether thereply given by the appellant and his general behaviour at the scene werenot items of circumstantial evidence which established that the appellantwas the person who inflicted the injuries on the deceased. In particularhe asked the Jury to consider whether the appellant, if innocent, wouldnot have offered to take the deceased to hospital, and he even commentedadversely on the appellant having left the scene at that stage. But inregard to the alleged admission of guilt by the appellant, apart from theinherent improbability of the evidence of Malcolm on this point, theJudge omitted to draw the attention of the Jury to the cross-examinationof Malcolm by appellant’s counsel which clearly showed that it was quiteunsafe to act on Malcolm’s evidence as to the precise question to whichthe appellant is said to have replied “I do not know ”. In regardto any adverse inference that the Jury were asked to draw from theconduct of the appellant in not having offered to take the deceased tohospital, the evidence of Malcolm is that when he arrived at the sceneand saw the deceased lying there he realised that the deceased wasalready dead. Tbe appellant who came there subsequently would alsohave known that the deceased was beyond any succour. The appellantdenied that he met Malcolm there. But even if Malcolm’s evidence isaccepted in preference to that of the appellant, no useful purpose wouldhave been served in offering to take the deceased to hospital at thatstage, and if the appellant, having arrived there and learnt what hadhappened, left the place abruptly, it would appear that he did so in orderto go to the Kandana Police Station and give information regarding thematter, which he did at 12.10 a.m. The appellant was cross-examinedat length as to why he went to the Police Station only at such a latehour. The explanation given by the appellant may not be entirelytruthful and was also the subject of adverse comment by the learnedtrial Judge, but in considering whether there was any undue delay onthe appellant’s part from which an inference against him could bedrawn, it is relevant to note that up to then Malcolm Gunasekere him-self had not gone to the Police Station and given information of what heknew although, according to him, he had heen at the scene for a longertime than the appellant.
We think that when the learned Judge gave prominence in his summing-up to the various matters from which, had they stood by themselves,inferences adverse to the appellant might have been drawn, he shouldalso have reminded the Jury of the other connected items of evidencewhich were in favour of the appellant. His omission to do so would haveconveyed to the Jury a misleading impression as to the stength of thecase against the appellant, and, in our opinion, amounted to misdirec-tion. See, in this connection, the observations of the Court of CriminalAppeal in England in Nina Vassileva1.
Learned counsel for the appellant also complained of the manner inwhich evidence relating to certain injuries found on the appellant whenhe was examined by a doctor (not Dr. Udawatte) on the 7th May, 1962,was dealt with in the summing-up. These injuries consisted of twosmall contusions on the right ring finger, a fairly extensive abrasion onthe outer side of the left thigh and a small abrasion on each knee. Apartfrom these injuries the appellant had a swelling on his upper lip whichthe doctor had failed to note. The evidence regarding the appellant’sinjuries was elicited from the doctor by Crown Counsel as tending toshow that the appellant was involved in an incident with the deceasedas described by Catherine Mendis. There was, however, nothing inher evidence which accounted for the injuries on the appellant. Thedoctor was questioned whether these injuries could have been accidentallyself-inflicted by the appellant when he was assaulting the deceased inthe course of a struggle with him, and the doctor discounted such atheory. According to the appellant he got the injuries by falling offhis bicycle on the night of the 6th May, 1962, when he was coming fromhome to his garage to sleep there, as he sometimes used to do. Thedoctor expressed the opinion that the injuries could very likely have beencaused in that way. Regarding this opinion, which was favourableto the appellant, the Judge told the Jury that it had been expressed bythe doctor without reference to the swelling on the lip, and he added :
“ It is for you to consider whether that is an injury which is likelyto have resulted if the accused fell from his bicycle, and whether ifthere is an injury to his lip there would also not be some sort ofabrasion and injuries to other parts of his face or knees'*
There seems to be no reason, however, to thiidc that had the doctornoticed the swelling on tho appellant’s lip, his opinion as to the probablecause of the injuries would have been any different. A swelling on thelip caused by contact with some part of the bicycle when the appellantfell off it, does not appear to be inherently unlikely. As for the observa-tion of the Judge regarding the absence of abrasions on the knees, itwas not in accordance with the evidence, for the appellant did have anabrasion on each knee. In our opinion there was misdirection in themanner in which the Judge dealt with the injuries on the appellant.
1 6 Criminal Appeal Report* 228.
Having regard to the infirmities in the case for the prosecution towhich we have drawn attention, it seemed unlikely to us that the Jurywould have convicted the appellant if they had been properly directed.We made order, therefore, quashing the conviction.
Accused acquitted.