THE QUEEN v. J. J. KANAGARATNAM et al

090-NLR-NLR-V-54-THE-QUEEN-v.-J.-J.-KANAGARATNAM-et-al.pdf

CFIOTCSY A. J.—The Queen v. Kanagarainam
375
[Assize Court]
1952Present: Choksy A.J.
THE QUEEN v. J. J. HANAGARATNAM et al.
S. G. 32—M. C. Nuwara Eliya, 6,298
Juror—Bias—“Presumed partiality ”—Criminal Procedure Code (Cap. 16),as. 225, 230.-
At a late stage of a trial in a criminal session of the Supreme Court it wasdiscovered that one of the jurors was a relative of a material witness for theprosecution and that from the very outset there had been contacts betweenthem and opportunities of communication. The witness in question wasnot one to speak merely to any formal facts, or facts of slight importance ;on the contrary, there was a strong conflict of interests between him and thefirst accused.
Meld, that, in such circumstances, it could not be said that it would be un-reasonable to presume partiality in the juror. In the interests of justice,therefore, the Jury should be discharged.
Order made in the course of a trial before the Supreme Court.
R. A. Kannangara, Crown Counsel, with L. B. T. Premaratne, CrownCounsel, for the prosecution.
G. E. Ghitty, with A. I. Rajasingham, and A. S. Vanigasooriyar, forthe 1st accused.
G. Mudanayake, for the 2nd accused.
Izzadeen Mohamed, for the 3rd accused.
A. I. Rajasingham, for the 4th accused.
/
Gur. adv. vult.
June 20, 1952. Choksy A.J.—
An application has been made on behalf of the first accused for thedischarge of the jury under Section 230 of the Criminal Procedure Codeon the ground that it was found towards the end of last week that oneof the jurors, namely, Mr. C. Charavanapavan (Assistant Chemist,Department of Agriculture, Peradeniya), is related to the witness Mr. S. R.Thambiah, who is to be called by the prosecution. It is stated thatthese two gentlemen are married to two sisters and that both of themhave had opportunities of meeting each other in the house of theirmother-in-law, during the course of this long trial, because Mr. Thambiahand his wife have stayed in her house whenever'the witness has comefrom Colombo (where Ije is permanently resident) to Handy to attendCourt for the purpose of giving evidence in this case. The juror, whois resident in Peradeniya, calls at the house of bis mother-in-law .everyafternoon to pick up two of his children, who attend school in Handy,and take them home to Peradeniya.
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CHOKSY A.J.—The Queen v. Kanagarainam
Mr. Chitty for the first accused stated that neither hi« client nor hi«Proctor, Mr. V. Ponnusamy, had been aware of either the relationship■or the other facts stated above, until Mr. Ponnusamy personally verifiedthe information which his client, the first accused, had received in the■course of last week. Had he known these facts Mr. Chitty states hewould have challenged Mr. Charavanapavan as he says that it is notin the interests of justice that Mr. Charavanapavan should be a memberof the jury which is trying this accused.
Mr. Thambiah is not a witness to speak to any formal facts, or factsof slight importance, but is to be called by the prosecution to prove thatthe Tivoli Cinema Theatre, in which the first accused, the witnessMr. Thambiah, and two others were partners, could not have yieldedsuch a large income as would account for the large sums of moneywhich were going into the first accused’s personal account at the NationalHank of India, Nuwara Eliya branch.
The first accused was the Chief Shroff of the National Bank of IndiaNuwara Eliya branch, and the second accused was one of the two assistantshroffs. The third accused was the ledger-keeper and the fourth accusedthe head clerk of that branch. All four have been charged with criminalconspiracy to commit criminal breach of trust of money of the NuwaraEliya branch of the National Bank between 15th February and 9thDecember, 1949. There are further charges to the effect that in pursuanceof the conspiracy the second accused used numerous documents whichbore the forged signatures of the respective managers of that branchas genuine. The first accused is also charged with having made falseentries in the books of the Bank to achieve the object of the conspiracy.In the result, it is alleged, the Bank lost a sum of Rs. 103,445*28 betweenthe above dates.
The prosecution has already led evidence of many thousands of rupees—totally disproportionate to his salary and other allowances—goinginto the private account of the first accused at the branch of whichhe was the shroff. As against such credits large sums of money havebeen drawn by the first accused from his account between the abovedates.- The monies alleged to have been misappropriated came out ofpayments which had to be credited to the account of the Governmentin the National Bank, Nuwara Eliya, where those who had to makepayments at the Nuwara Eliya KLacheheri deposited monies to thecredit of the Government Account. These deposits ran into severalthousands of rupees at a time per day and almost every day. Therewere frequent withdrawals too. On occasions these withdrawals ranup to as much as from one to two lakhs per day.
The history of the origin and subsequent career of the Tivoli Theatre,as disclosed by the evidence of the witness Mr. Thambiah given in connec-tion with the present application, and his evidence in the District Courtof Nuwara Eliya in a civil case which is now pending in that Court inconnection with the Tivoli Theatre, and also the pleadings in that action(which have been produced in the course of the present inquiry) as alsothe evidence of Mr. Ponnusamy on the present application all tend toreveal that feelings between the first accused, the witness Mr. Thambiah,
CHOKSY A.J.—The Queen v. Kxmagaratnam
377
and. two others, all four of whom started the Theatre a few years ago,are strained and antagonistic. The first accused, who was said to havebeen the Chairman of the Urban Council of Nuwara Eliya at the beginningof the venture and who later was the Mayor of the Municipal Councilof Nuwara Eliya, took on lease in his own name (but apparently onbehalf of all the partners) the land upon which the Theatre now stands.All four joined in the project of erecting the Theatre and equipping itas a Cinema Theatre, at a total cost to all of them together of someRs. 148,000. The witness Mr. Thambiah managed the Theatre untilJune, 1948. The first accused thereafter took over the management.The evidence in the civil case shows that the four persons had not enteredinto any written partnership, although it was registered under theBusiness Names Ordinance ; and that trouble started between thembefore the accounts of even the very first year had been gone ini^ ; thatno distribution of any profits had been made between the partnersbut that a certain part of the debts of the partnership incurred in con-nection with the building and equipping of the Theatre were paid fromthe income ; that from the time the first accused took over the manage-ment, in June 1948, he did not make any payments to either the witnessThambiah or the other partners out of the income of the theatre *, thattroubles reached such a piteh that parts of the sound equipment wereremoved from the Theatre ; and that the first accused in the presentcase, and others with him, were charged in the Magistrate’s Court ofNuwara Eliya with unlawful assembly and connected charges. Itappears that the first accused was acquitted of these charges but therecan be no donbt whatsoever that considerable bitterness and ill-feelingsmust necessarily have been engendered between the first accused on theone side and bis co-partners on the other in connection with the various-disputes that had arisen between them.
The civil case in the District Court of Nuwara Eliya was filed by oneof the co-partners in June 1950 against the first accused, as the first-defendant therein, the witness Mr. Thambiah as the second defendant,and the fourth partner as the third defendant. The plaintiff claims,as against the first accused, declaration of title to one-fourth share ofthe Theatre and of the profits thereof and asks that the first accused, whohas apparently been in possession of the entire Theatre to the exclusionof his three co-partners, be ejected from the plaintiff’s one-fourthshare. The other two partners were made defendants because they are-said to be partners but the plaintiff claimed no relief as against them.The plaintiff also alleges that the first defendant has unlawfully appro-priated to himself all the profits of the Theatre and also alleges mis-management by the first accused. The position taken up by the firstaccused, in his answer, is that he is entitled to remain in possession ofthe entire premises as the lease is in his own name. He admits thatthe plaintiff and the other two defendants “ contributed monies andput up the said building with a view to running the Theatre ”, and allegescollusion between the plaintiff and the second and third defendantsand pleads that the action must fail in the absence of any written docu-ment constituting any partnership between the plaintiff and himself
378
CHOKSY A. J.—The Queen v. IZanagcirainam
and the co – defendants. Mr. Thambiah was the first witness calledon behalf of the plaintiff. His evidence makes it quite clear that althoughthere was a partnership in fact between the parties there was no writtendocument constituting the partnership.
In these circumstances one can well understand the allegation ofanimosity and therefore of bias made against the witness Mr. Thambiahas Mr. Thambiah and his co-partners are faced with what they wouldregard as a dishonest attempt on the part of the first accused to defeattheir claims by relying on the technical point of the absence of a writingconstituting the partnership when in fact all four of them had workedon the basis of their being partners in the business. It is said, on behalfof the first accused, that in these circumstances Mr. Thambiah wouldbe most interested in doing what he could to ensure the conviction ofthe first accused because, quite apart from such satisfaction—moral ormorbid—as he may derive from such a fate befalling a supposedly dis-honest partner of his, a compulsory confinement of the first accused inprison would, in the view of the witness, facilitate his getting backpossession of the Tivoli Theatre for himself and his co-partners, andworking it to their advantage so as to retrieve as far as possible the lossthey have so far sustained.
I am quite satisfied that there is a strong conflict of interests betweenthe first accused on the one hand and the witness Mr. Thambiah on theother. But the question is whether that renders Mr. Thambiah’sbrother-in-law, Mr. Charavanapavan, “ improper as a juror ” (section225 of the Criminal Procedure Code) and so makes it necessary for me todischarge the Jury “ in the interests of justice ”.
The evidence of Mr. Ponnusamy, a Proctor and Notary of manyyears’ standing, and the present Crown Proctor of Nuwara Eliya, andthe evidence of the witness Mr. Thambiah, both of whom were putinto the witness box for the purpose of this inquiry upon my .directionsand request, make it clear that Mr. and Mrs. Thambiah have stayedat the house of Mrs. Thampoe, in Handy, on the 12th May last (thedate on which this trial began), and on the 13th May, and againon the 16th of this month—June 1952. Mr. Thambiah had to be inattendance in Court on these three dates. His evidence also showsthat both bis wife and he have been in Kandy at Mrs. Thampoe’s fromthe afternoon of Eriday the 13th June although both of them, he says,were at Hanguranketta on Saturday and Sunday. He has admitted thathe has had opportunities of speaking to Mr. Charavanapavan atMrs. Thampoe’s at least on two or three occasions during the courseof this trial. He has also admitted that Mr. Charavanapavan used togo to Mrs. Thampoe’s to take his children home after school. On oneoccasion, during the course of this trial, he says that when his wife andhe were out shopping they both met Mr. and Mrs. Charavanapavanat one of the shops and that Mr. Charavanapavan staved off any attemptof the witness to make conversation with him by telling the witnessthat as he was a juror they should not talk.. They have both been onthe friendliest of terms and yet Mr. Thambiah would have us believe
CHOKSY A.J.—The Queen v. K.anagaratnam
379
that he always addressed his brother-in-law as “ Mr. Charavanapavan ”and that he addressed him in this formal style even when conversingwith Viim in Tamil. When questioned about the civil case, where theinterests of himself and the first accused are adverse to one another,he said that he did not think that Mr. Charavanapavan knew anythingabout that case. One should not forget that Mr. Thambiah had alsogiven evidence, in connection with the present case, in the Magistrate’sCourt before the accused were committed for trial by the Supreme Court.Despite all this he said that he had discussed the civil case with no oneelse except his lawyers and his wife, who is the sister of Mrs. Charavana-pavan, and that he had never discussed it in the family circle. Havingregard to the normal course of human conduct I think the witness hasendeavoured to portray a very artificial situation in eonnection withthe civil case. Considering the large sum involved in the litigation•over the Theatre, the circumstances in which Mr. Thambiah' cameto join in the venture after being condemned by a Medical Board asunfit to continue his duties as a Public Servant, the common basis ofmutual trust upon which the four partners set out upon their businessenterprise, the subsequent unfortunate developments resulting evenin a criminal case, the attitude of the first defendant which resultedin the breaking up of all confidence reposed in him by his associatesand which forced one of the partners to carry the dispute into the civil court,and, to cap it all, the utterly disingenuous, though perfectly legal, defenceset up by the first accused in order to defeat the claims of his erstwhilepartners, it is impossible for me to accept the statement that the witnessdid not discuss that case and the conduct of the first accused in relationto the business, with any other persons whomsoever except his lawyersand his wife. The probabilities are so strongly against Mr. Thambiah’sversion that I cannot give credence to it. When one adds to this thestrong likelihood that the two sisters must at least have shared theknowledge derived by Sirs. Thambiah from her husband one can almosthazard with certainty that the dispute and everything connected withit must have been the topic of conversation between the respectivefamilies and probably a much larger circle of relatives and friends.Information about litigation between owners of such a public place as a■Cinema Theatre quickly gets about and becomes a matter of commonknowledge even amongst members of the general public of the place. Insuch circumstances it would be difficult to imagine that the brother-in-law of one of the principal patties to the dispute would not be madeaware of what the position was. I
I agree with the contention of Mr. Kannangara, Crown Counsel, thatthe mere existence of affinity between a juror and a witness, howeverstrongly biased the witness may be against the accused, cannot ofitself, in every case, necessarily be a ground for discharging the Jury.If however the Court is satisfied that as a result of such an affinity,and the very strong probability of the Juror’s knowledge of theantagonistic relationship between the witness and the accused, therecan be either actual partiality in the juror or some presumed partiality,then I think the interests of justice re.quire that such a juror should not
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be allowed to sit in judgment on the accused. It must be noted thatthe circumstances must be such as to raise a presumption of partialityor bias in the juror.
In the present case no evidence of actual partiality is made and Ihave therefore to consider whether in the circumstances there is “ si>mepresumed partiality ” in the juror. Any one standing in such a relation-ship as this Juror to a person who has been treated in the manner inwhich Mr. Thambiah and his co-partners say they have been treatedby the first accused, would naturally be disposed to view with muchsuspicion, if not with actual disbelief, any explanation given by a personin the position of the first accused in relation to such serious chargesas those of criminal conspiracy and criminal breach of trust. Such aperson cannot be said to be so free of all taint of partiality as to beregarded as an absolutely unbiased member of a tribunal who is preparedto enter upon his duties with a full belief in the innocence of the accused,,which is the first presumption with which every trial should begin.There being a very strong probability that the juror in question wasaware, if not of all the details at least of the salient features, of the-trouble between the first accused and his brother-in-law, and givingthe fullest credit for an honest endeavour on his part to exclude fromhis mind all that knowledge, I am afraid it cannot be said that he willbe entirely free of sub-conscious bias against the first accused. Thereis of course just a possibility that he was not aware that he should havementioned to the Court, immediately upon his being allowed to takehis seat in the jury box unchallenged, his relationship to a -witness forthe prosecution. Counsel for the accused has commented on the factthat the particular juror in question has remained silent although, at thevery commencement of this trial when all the jurors summoned werepresent in Court, one of the jurors whose name was drawn was challengedby Crown Counsel who stated to Court that that juror had mentionedto Crown Counsel his relationship with some one in the Colombo branchof the National Bank, and on that ground Crown Counsel had challengedthat particular juror. One would have expected that ordinary prudenceand a sense of the fitness of things would have prompted Mr. Charavana-pavan to mention his relationship to the -witness in open Court as soonas his name was called. In fairness to him it may well be that hethought that there would be no unfairness or even the slightestimpropriety if he did not act upon any material beyond the actualevidence led in Court in his presence. Even so the question of sub-conscious bias has to be considered.
Various cases have been cited to me as being of assistance in arrivingat a correct decision of this matter. The case of The King v.Vidanagamage Edwin1 has been referred to as being the nearest to thepresent case on the question of partiality, real or presumed, of a jurorwhose first cousin was married to the sister of one of the chief witnessesfor the prosecution. Dias J. stopped the trial and discharged the jury-He emphasized one of the cardinal principles which govern the administra-tion of justice, namely, that not only must justice be free from bias„
1 (1947) 48 N. L. B. 211
CHOKSY A.J.—The Queen v. Kanagaratnam
381
but that it should also be free from “the faintest* suspicion of bias”.The relationship that existed between the juror and the witness in thatcase was a far more distant one than the affinity between the jurorand the witness in the present case. Nevertheless, the learned Judgewas of the view that the interests of justice required the jury to bedischarged.
Mr. Kannangara argued that the administration of justice did notreceive a set-back in that case, because, as the learned Judge himselfpointed out, it was at a fairly early stage of the trial that the objectionto the juror was brought to the notice of Counsel and the Court.Mr. Kannangara stressed that, in the present case, the effect on theadministration of justice would be serious because of several circumstancessuch as that the alleged offences themselves were said to have beencommitted about three years ago, that the various acts and circum-stances involved in these offences were spread over a period of aboutten months, that numerous items of evidence had all to be collected andplaced before the Court at very great trouble, expense and time, thatmost of the 899 documents which had been produced in the lower Courthad already been placed before this Court, that a very large number ofwitnesses—fifty-seven, in fact—had been called to date in this Court,including two Managers of the Nuwara Eliya branch of the NationalBank, who were in charge respectively at material dates, and whoseattendance has been secured from abroad at great inconvenience andexpense to all concerned, that the case for the prosecution had almostcome to a conclusion, and that it would be prejudicial to the accusedthemselves and against their interests for the jury to be dischargedat such a late stage and for the case to be retried de novo, particularlyin the absence of any actual prejudice to the accused (as was apparentfrom the evidence of Mr. Thambiah who does not appear to havediscussed this case at all with the juror). He argued therefore that,in the interests of justice, the objection should be overruled and thetrial proceeded with.
While I appreciate the full force and weight of these facts, in themselves,I think there is a larger question involved than the trial of this particularcase, and that is whether or not the interests of justice in the largeraspect—and not merely the interests of either the prosecution or eventhe accused in this particular case—require that the objection shouldbe upheld, for it is an equally cardinal principle connected with theadministration of justice that not only must justice be done but thatit must also appear to be done. The Privy Council decision in HasBehari v. The Emperor1 cited on behalf of the accused is in point.Their Lordships pointed out that the duty of the Judge “ toprevent a scandal and perversion of justice ” is a.“ continuous duty ”imposed on him throughout the trial. The interests of justicerequire the same continuous vigilance to guard the accused againstany possible prejudice by some presumed or actual partiality in ajuror. I have no doubt that, had the relationship, or the opportn-nities of contact, between the juror and the witness been known to the
* A. I. B. (1933) jP, C, 208
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CTHOKSY A. J.—The Queen v. ILanagaratnam
accused earlier, the juror would have been challenged at the very outset.The material that is before tne convinces me that if the accused hadbeen aware of the- objectionable situation he would not have kept quietand taken the chance of a verdict and thereby precluded himself fromthereafter taking the objection. In the words of .the Privy Council“ if the cause of objection is in fact unknown to him there appears tobe no reason why the Court in a proper case should not give effect to it.”In that particular case, the objection was given effect to at as a latestage as the hearing in the Privy Council because the cause of objectionhad existed right throughout the trial, although unknown to the accuseduntil its termination.
The case of Dimes v. The Proprietors of the Grand Junction Canal1is not of much assistance because there Lord Cottenham, the LordChancellor, who heard the appeal, had an interest in the subject matterof the suit in the shape of shares in the Company to the extent of severalthousand pounds, partly in his own right and partly as Trustee for others,and so the House of Lords held that the Lord Chancellor’s interest inthe subject matter of the suit disqualified him from deciding uponit as no man could be a judge in his own cause. The case is only materialto this extent that there too the defendant did not know of the LordChancellor’s disqualification until after bis appeal had been dismissedby the Lord Chancellor. The delay in the discovery of that fact didnot affect the disability which attached to the Lord Chancellor allalong. Similarly, in the present case, if there was a disqualificationin the juror at the commencement of the trial, that disqualificationremained right through the trial, and therefore could be given effectto at any stage of the trial. In Kennedy's case an objection to thecomposition of the Jury was taken only in the Privy Council becausethe accused and his legal advisers were ignorant of the facts at theproper time although the objection failed for other reasons. See16 Ceylon Law Recorder LV.
The case of the The King v. Essex Justices, Ex parte Perkins 2 is avery strong case indeed. The Clerk to the Justices was a Solicitorwhose firm had been consulted by Mrs. Perkins in connection with thedrawing of a deed of separation from her husband. The Clerk to theJustices was quite unaware of this except that that fact was brieflymentioned among other items of work during the week, in a weeklyreport which he received from his managing clerk. This item hadpassed out of his memory almost immediately after he had read thereport as there was no reason for that item to make any impressionupon his mind, especially as the report indicated that the fee wouldbe a very small one. Later, Mrs. Perkins appeared before the Justicesin connection with an application for maintenance against her husband.The husband was aware that bis wife had consulted the firm of theClerk to the Justices, but made no mention of that fact in the courseof the case against him. Later, an application was made by him toset aside the order qf the Justices made against him. The Court heldthat despite the fact that no injustice was in fact done in the particular
3 (7852) 3 Hottse of Lords Cases 759.2 (1927) 2 K. B. 475.
CBCOKSY A. J.—The Qtieen v. Kanagaratnam
383
case, nevertheless, it was possible that the impression on the mind ofthe husband would have been that justice was not being done seeingthat the Solicitor was advising the Justices on the hearing of the summonswhich his wife had taken out against him. Avory J. held that in, spiteof that and also in spite of the fact that the Clerk to the Justices hadin fact tendered advice to the Justices which was not against the husbandbut against Mrs. Perkins, the judgment of the Justices should he setaside. In his judgment, Avory J. relied upon the principle enunciatedby Lord Hewart C.J. in Bex v. Sussex Justices, Ex parte McCarthy 1,where Lord Hewart said : “ It is said, and, no doubt, truly, that whenthat gentleman retired in the usual way with the justices, taking withhim the notes of the evidence in case the justices might desire to consulthim, the justices came to a conclusion without consulting him, and thathe scrupulously abstained from referring to the case in any way. Butwhile that is so, a long line of cases shows that it is not merely of someimportance but is of fundamental importance that justice should notonly be done, but should manifestly and undoubtedly seem to be done…. The question therefore is not whether in this ease the deputy
clerk made any observation or offered any criticism which he mightnot properly have made or offered ; the question is whether he wasso related to the case in its civil aspect as to be unfit to act as .clerkto the justices in the criminal matter. The answer to that questiondepends not upon what actually was done, but upon what might appearto be done. Nothing is to be done which creates even a suspicion thatthere has been an improper interference with the course of justice”.It should be observed that what was stressed was not what was actuallydone but the appearance of things. The Judge addressed himself tothe question “ whether or not there might appear to be a reasonablelikelihood of his being biased. If there might, then justice would notseem to the applicant to be done The learned Judge held that“ the necessary or, at least, the reasonable impression on the mind ofthe applicant would be that justice was not being done ”. Althoughhe freed both the Justices and their Clerk from moral blame, Avory J.set aside the judgment of the Justices. Swift J. put the decision onthe ground that it was “ essential that justice should be so administeredas to satisfy reasonable persons that the tribunal is impartial andunbiased” . He was satisfied that, in the particular circumstancesof that case, a reasonable man might well suppose, or even have a suspicioncreated in his mind, that there had been an improper interference withthe course of justice even though in fact none had taken place. Icannot agree with Mr. ELannangara’s. submission that the decision ofthe Bang’s Bench could be put on the principle that no man shouldbe judge in his own cause. No reference was made to that principlenor were any authorities bearing on that principle relied on for thejudgment. It seems to me that the principle given effect to was thatnot only must justice be done but that it must also appear to be done.
Applying that test to the particular circumstances of the presentcase, it seems to me that a reasonable man might suppose that, in viewof the admitted relationship between the juror and one important
1 (1924) 1 K. B. 256.
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witness for the prosecution, the contacts between them and the oppor-tunities of communication between the two furnished by such contacts,even though actual communication has been denied, might cause areasopable man—I do not agree that it must be the accused himself—to suppose that there had been an improper interference with thecourse of justice ; at the least, the situation certainly lends itself to thecreation of such a suspicion in the mind of a reasonable man. It wouldnot be unreasonable for a reasonable person to feel that the accusedhad been handed over for trial to a jury where one of them was likelyto be a biased juror. It could not be said that in such circumstancesit would be unreasonable to presume partiality in the juror. If oneadds to that the very strong probabilities that the juror would haveknown the facts forming the background of the relations between the1st accused and the witness, namely, the troubles and litigation betweenthem, then I think the presumption of bias becomes very strong indeed.
The possibility of prejudice to accused persons by a sensationalnewspaper report about explosives and burglars’ tools being found inthe possession of certain prisoners in the jail on the morning of then-trial, which newspaper report had been read or brought to the noticeof some of the jurymen, was considered a sufficient ground by themajority of the Court of Criminal Appeal for ordering a fresh trial inThe King v. Sugathadasa 1.
I have questioned the particular Juror and see no reason to alterthe view I have formed.
I am of the view that in the interests of justice the Jury should bedischarged and I accordingly discharge the Jury.
Jury discharged.
1 [1949) SI IN7. L. S. 93.