THE QUEEN v. J. L. P. ARNOLIS APPUHAMY

058-NLR-NLR-V-70-THE-QUEEN-v.-J.-L.-P.-ARNOLIS-APPUHAMY.pdf


256
Queen v. Arnolia Appuhamy
[Court of Criminal Appeal]
1967 Present: H. N. G. Fernando, C.J. (President), Tambiah, J., andAbeyesundere, J.THE QUEEN v. J. L. P. ARNOLIS APPUHAMYAppeal No. 70 of 1967, with Application No. 99S. C. 135/66—M. C. Anuradhapura, 10423Trial before Supreme Court—Verdict of Jury—Duty of Judge to accept it—Autrefoisconvict—Criminal Procedure Code, 83. 230, 248 (2), 251.
Section 230 of the Criminal Procedure Code roads as follows :—-
“ The Judge may also discharge the jury whenever tho prisoner becomesincapable of remaining at tho bar and whenever in the opinion of the Judgetho interests of justice so roquire.”
Held, that section 230 does not entitle the Judge to discharge tho Jury in acase in which he disagrees with the view of the facts taken by the Jury.
Accordingly, where, after a verdict of guilty is returned by the Jury, theJudge discharges the Jury because he disagrees with that verdict, tho accusedis entitled to raise, in appeal, the point of autrefois convict if he is convictedagain at a second trial on the same indictment.
H. N. G. FERNANDO, C.J.—Quezn v. Arnolis Appuhamy
257
-A. f’PEAX against a conviction at a trial before the Supreme Court.
R. S. R. Coomarasivamy, with Anil Obeyesekere, Nihal Jaya-ivickreme, C. Chakradaran, and M. Kanakaratnam (Assigned), for theAccused-Appellant.
E. R. de Fonseka, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
October 19, 19G7. H. N. G. Fernando, C.J.—
The appellant in this case was indicted on two counts with the murder1 one Muthu Banda, and with the attempted murder of one Nanhamy.He was after trial convicted on 2nd July 1967 of culpable homicidenot amounting to murder on the first count, and of attempted culpablehomicide not amounting to murder on the second count, and sentencedto terms of imprisonment for 10 years and 3 years, to run concurrently.We allowed the appeal and ordered a verdict of acquittal to be entered.We now state our reasons.
The only point argued in appeal was one of autrefois convict, based onthe following facts. The appellant had been previously tried on thesame indictment and it is necessary to re-produce here the proceedingswhich took place at the end of the earlier trial on 28th May 1967 :—
“ Jury return at 4.20 p.m.
Clark of Assize :Mr. Foreman, arc you unanimously agreed upon
your verdict in respect of charge No. 1 ?
Foreman :Yes.
Clerk of Assize :By your unanimous verdict , do you find the
prisoner guilty of the charge laid against him ?
Foreman :No.
Clerk of Assize :Do you find him guilty of any lesser offence ?
Foreman :Yes.
Clerk of Assize :Foreman :
Clerk of Assize :
Foreman :
Clerk of Assize :Foreman :
Of what offence ?
We find him guilty of culpable homicide notamounting to murder.
By your unanimous verdict, do you find theprisoner guilty of the charge laid against him incharge No. 2 ?
Not guilty.
Of any lesser offence ?
No.
258
H. N. G. FERNANDO, C.J.—Queen v. Arnolis Appuhamy
Clerk of Assize:Gentlemen, your unanimous verdict is that
you find the prisoner, Jayasekera Liyana Pata-bendige Arnolis Appuhamy guilty of culpablehomicide not amounting to murder in respect ofcount No. 1, and not guilty of any offence inrespect of Count No. 2 ?
Foreman:Yes.
Court:Mr. Foreman, the position is that you hold that
the injuries on Nanhamy were not caused bygunshot injuries. I directed that the verdictyou would have to bring in respect to that matterwould be either attempted murder, grievoushurt or voluntarily causing simple hurt.
Foreman :My Lord, he exceeded the right of private defence.
Court:Your verdict was arrived at on that footing ?
Mr. Foreman :My Lord, simple hurt may have been caused by a
pellet not directed towards Nanhamy.
Court :In other words, you held that that was accidental 1
Mr. Foreman :Yes.
Court :You said that your verdict of culpable homicide
not amounting to murder was on the footingthat he exceeded the right of private defence ?
Foreman :Yes.
Court:I did not tell you what the law in respect of
private defence is. I told you to follow the lawas I gave you.
Mr. Foreman :My Lord, what we say is that he used the gun
before the other man used the gun.
Court to Crown Shall I charge them again ?
Counsel :
Croum Counsel :It appears that the verdict is confused, there
appears to be some grave confusion. The questionof private defence never arose. If that was thebasis on which the verdict was arrived at thenthere is no doubt that there was grave confusion.
Court:Mr. Kapukotuwa, have you anything to say ?
Mr. Kapukotuwa: The position in law is that the Jury are the sole
judges on questions of fact. Even if a defencehas not been taken, it is open to them to decideon what they can. But, if Your Lordship believesthat the Jury has been confused in regard tothe law, then it is open to Your Lordship todischarge the Jury and order a re-trial.
H. N. G. FERNANDO, C.J.—Queen v. Amolia Appuhamy
259
Court:In the circumstances of this particular case,
I think that if I were to charge the Jury now,it might be prejudicial to the accused. Inthose circumstances, since they have come to aconclusion on a matter they were not addressedon and on which there was no evidence led, Ithink the only fair thing to do is to dischargethe Jury and order a re-trial. I accordinglyorder a re-trial. The accused is to be on remand. ’ *
It is perfectly clear that the learned Commissioner disagreed with theunanimous verdict at the earlier trial because in his opinion the evidencedid not justify the finding of the Jury that the accused had fired hisgun in self-defence—the learned Commissioner had himself not directedthe Jury on the matter of self-defence. But with respect, it seems to usthat the defence could properly arise. According to the evidence ofNanhamy at the second trial, Muttu Banda and Nanhamy were bothGame Watchers at the Wilpattu Sanctuary. The two men were aboutto retire for the night when they heard a gun shot some distance away,and they proceeded in that direction, Muttu Banda carrying a gun andNanhamy a torch. They then saw three men and gave chase to those men,whereupon two of the men ran in one direction and the third in another.They chased the third man who was running into the jungle and theystopped after chasing for a few fathoms. The third man himself appar-ently stopped in the jungle, for Nanhamy then recognized him as theaccused. At this stage, the accused fired a gun, killing Muttu Bandaand injuring Nanhamy. Although there was no evidence that MuttuBanda had actually aimed his own gun at the accused before the latterfired his shot, the circumstances might well have led the Jury to thinkthat such was probably the case. A man with a gun in hand who runsaway when chased by another with a gun, particularly by a game watcher,is prima facie trying to make his escape ; and if he subsequently fireswhen “ at bay”, it is not unlikely that in the words of the Foreman“he used the gun before the other man (Muttu Banda) used the gun. ”Had the learned Commissioner appreciated this aspect of the matter andacted according to law, the interests of justice would have been servedfar better than they are in the ultimate result.
It is most unfortunate that neither the learned Commissioner nui CrownCounsel appear to have been aware of a judgment of this Court which iscompletely in point. It was held in The Queen v. Handy1 that s. 230of the Criminal Procedure Code does not entitle the presidingJudge to discharge the Jury in a case in which he disagrees with the viewof the facts taken by the Jury. The relevant provisions of the Codewere fully examined in that judgment, and we are in entire agreementwith the judgment. We need mention only one additional point, forthe sake of completeness. In Handy's case, as in the present case, thepresiding Judge quite clearly did not approve of the Jury’s verdict.
1 (1959) 61 N. L. B. 265.
260
Dayawathie v. Gunaratne
If for that reason the Judge was reluctant to accept the verdict, s. 248 (2)entitled him to direct a re-consideration of the verdict, and to chargethe Jury afresh for that purpose. But short of having the verdictrecorded and thereafter proceeding according to law, s. 248 (2) providedthe only permissible alternative. But even then, the Judge would havebeen bound to accept the verdict given after re-consideration. Thisprovision emphasises the principle that the object of a trial by Jury isto secure a verdict which the Jury holds to be proper, and not a verdictwhich a Judge will find acceptable.
The only difference between the instant case and that of Handy isthat in the latter case the rejected verdict was one of acquittal, whereashere the verdict was a conviction of culpable homicide on the first countupon which sentence should have been passed. The accused has beenfortunate in escaping punishment, for in view of s. 251 of the Code it isnow too late to pass sentence on him. Por that, he should be thankfulto the presiding Judge and the Crown Counsel who conducted theprosecution at the first trial.
Accused acquitted.