007-NLR-NLR-V-69-THE-QUEEN-v.-M.-ANTHONYPILLAI.pdf
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The Queen v. AntitonyjriUai
[Court of Criminal Appeal]
Present: H. N. G. Fernando, S.P.J., T. S. Fernando, J., andAbeyesundere, J.THE QUEEN v. M. ANTHONYPILLATApplication No. 49 of 1965S. C. 21/64—M. C. Jaffna, 26739
Tried for murder—Medical evidence—Bight of Crown to call a medical witness notnamed in the indictment.—Bequiremcnt that defence should be given adequatenotice of the nature of the new evidence and a proper opportunity to meet it—Duty of Crown to lead evidence of all the medical treatment given to the deceased—Statement made by deceased—EvidetUial value thereof—Accident—Burden ofproof.
The appellant was convicted of the murder of his wife. On the night of theincident the de."Cased stated that theappellnnt had p:iurcd some liquid smelling ofkerosene oil into her mouth. The evidence showed that the deceased died ofpneumonia about seventy hours after the alleged administration of the poison.According to the medical evidence it was not certain that the direct cause ofthe death was the administration of the poison. Application was thereforemade by the Crown, in the course of the trial, to call a new medicalwitness not named in tho indictment. Despite objection taken by the defence,the Court allowed the application. In the event, it was unsafe to suppose thatthe Jury would have returned their verdict of murder but for the new evident*stating that death was directly caused by the poison.
Held, that, l.»efore the new evidence was led, the defence should have beengiven adequate notice of the nature of the new evidence, as well as sufficientopportunity for preparation to cross-examine the witness who was to be called
Held further, (i) that it was the duty of tho prosecution to have led some,evidence concerning the condition and treatment of the patient throughoutall the seventy hours which preceded her death.
that the trial Judge, when he directed the Jury that they could take intoconsideration the statement mode by tho deceased, should have cautioned theJury as to the risk of acting upon the statement of a person who was not a witnessat the trial, and as to the need to consider with special care the question whetherthe statement could be accepted as true and accurate!
that even if the appellant caused the death of his wife by administeringsome liquid, it was tho duty of the Judge to have explained to the Jury that theburden lay on the prosecution to exclude the possibility of an accidental death
A.PPEAL against a conviction at a trial before the Supreme Court. K. Charavanamutlu (Assigned), for the Accused-Appellant.
R. Abeysuriya, Crown Counsel, for the Crown.
Cur. adv. wit.
H. N. G. FERNANDO, S.P.J.— The Queen v. AnthonypiUai33
July 19, 1905. H. N. G. Fehnando, S.P.J.—
Tins appellant was convicted of the murder of his wife and sentencedto death. On the night of the incident, 1st September 1903, she madothree statements, each to the effect that at about 11.30 p.m. the Appellanthad poured some liquid smelling of kerosene oil into her mouth. It8ullices to quote a part of one statement which she mado to a Police officer :
“ Today at about 11.30 pan., my husband spoke to me and requestedme to open my mouth to see whether the decayed teeth were removedand whether there were anymore to be removed. I opened my mouth.He then poured something from a bottle he had in his hand. It wasa small bottle. The bottle was covered with his hand. Only themouth was visible. I did not swallow. I put the contents out. Iopened the gate and came out. I vomited again. ”
After admission to hospital, the deceased woman was found by theDoctor who attended on her to be unconscious or semiconscious. ThisDoctor formed the opinion that she had taken some poison of the Folidoltype containing parathion ; this was because of the symptoms he noticed,namely—
“ She was frothing at the mouth and was Dyspynoes. She was findingit difficult to breathe. Her pupils were unequal and both contractedand the lungs showed crepitation. ”
He accordingly treated her, mainly with a number of injections, on thebasis of this diagnosis, and in his opinion the diagnosis was correct- bccausothe patient responded to the treatment within a few hours. After thatstage, however, the woman appears to have suffered from Broncho-pneumonia and she died on 4th September about seventy hours afterthe alleged administration of the poison. In his evidence at the trial,this Doctor expressed his opinion that pneumonia was a probable con-sequence of the effect on the lungs of a poison of the parathion type. Infact he said that he had administered to his patient an antidote againstpneumonia for this very reason. Considering that the deceased woman’sdeath was not, according to this evidence, directly caused by the admini-stration of the poison, it is at the least uncertain whether the Jury wouldhave been willing to act .on the opinion of the Doctor that pneumoniahad probably resulted from the administration of the poison, and notfrom some other cause. The Doctor himself did not profess to have expertknowledge of the consequences of the administration of a poison of thetype which he suspected in this ease. The doctor was a young managed about twenty-seven in September 19G3 and he said that this was thefirst case he had dealt with, where there was suspected administration ofFolidol.
This was only one difficulty which the prosecution encountered.Another was that an acting Judicial Medical Officer, who perfornwd thepost-mortem examination, had expressed in his report the followingopinion : —
“ In my opinion, death was due to Broncho-pneumonia involving, bothlungs and acute tracheitis, and possible toxaemia due to round wornia.
3G
H. N. G. FERNANDO, S.P.J.—The Queen v. AiUhonypillai
Evidence of poisoning is awaited. The Analyst’s report on Stomachcontents, Liver and Spleen submitted herewith. ”
On that opinion, upon which the Defence could no doubt have relied atthe Trial, the Jury might not have been able to rule out the possibilitythat toxaemia due to worms had at least contributed to the death of thedeceased woman, and to exclude the consequential doubt whether thedeath resulted from the administration of some liquid.
This difficulty was overcome by an application made in the course ofthe trial to call a now witness not named in the indictment. On objectionbeing taken by the Defence tlic Court heard arguments and ultimatelyallowed the application in the following terms :—
“ If I am satisfied that it will prejudice your defence, I shall not allowthe application. But, I do not think so.
You say had you known of this earlier, you may have led expertevidence helpful to the defence but you had that opportunity since5.4.65, when you were notified by the Crown. You had with youthe findings of fact by the Medical witnesses in the. depositions madeto the Magistrate. You could have, if you chose to, sought expert,opinion based on the data given by the medical men.
You had tho opportunity, you had the time, and you had thematerial which is more than precis. ; In the interests of Justice ’does not mean the interests of the accused alone.
I grant the application, the name of the witness to be added to theindictment ”.
In consequence of this order Dr. Chandra Amarasekera Deputy JudicialMedical Officer, Colombo, gave evidence on the second date of trial. Thoimportance of his evidence is made apparent in tho charge to the Jury.In inviting the Jury to disregard the possibility that toxaemia due toround worms may have been a contributory cause of.death the TrialJudge referred to the opinion of Dr. Amarasekera that death could nothave been due to toxaemia caused by round worms, he was very emphaticon that ”. Much stress was also laid on Dr. Amarasekera’s opinion thatthe deceased woman must have contracted pneumonia because of theadministration of some poison containing parathion. Indeed it wouldbe unsafe to suppose that the Jury would have returned their verdict ofmurder but for Dr. Amarasekera’s evidence.
The prosecution was no doubt entitled to call Dr. Amarasekera asa witness, even though there had been an omission to lead in theMagistrate’s Court evidence of the nature given by Dr. Amarasekera.But a series of cases in England has established that where it is necessaryto load such new evidence the Defence must be given adequate notice ofthe nature of the new evidence, as well as sufficient opportunity forpreparation to cross-examine the witness who is to be called. In thepresent case the Defence had neither such notice nor such opportunity.
H. K, G. FERNANDO, S.P.J.—The Qveen v. Anthonypillat
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The terms of the Judge’s order quoted above make it clear that even ifDefence counsel had asked for an adjournment of the trial such anapplication would have been refused. The Defence had been made awareabout a month before the trial of the Crown’s intention to call Dr. Amara-sekera. But at that stage no copy or precis of Dr. Amarasekera’s evidencehas been furnished to the Defence. Having regard to the able mannerin which Assigned Counsel represented his client at the trial, he couldwell have made valuable use of a reasonable opportunity for preparationto meet Dr. Amarasekera’s evidence. The fact that such an opportunitywas denied to the defence was gravely prejudicial.
Before turning to other, aspects of the case it is convenient to referto a matter which appears to have entirely escaped the attention of thetrial Judge. The deceased woman was admitted to Hospital at 2 a.m. on2nd September. Dr. Joseph who attended to her immediately and whotreated the ease as one of suspected poisoning was with the patient until4 a.m. Thereafter, he had nothing to do with the patient. Quitenaturally, lie gave no evidence whatever as to the history of the caseduring the sixty-five hours which preceded the death which took placeat. 0.45 p.m. on the 4th September. No Doctor or Nurse who attendedto the patient during this period was called at the trial, and although the.bed-head ticket was produced there is no reference in the evidence or ini lie summing up of any matters pertaining to the period after 4 a.m. onthe 2nd September. It is impossible at this stage to say that the Jurywould have reached their verdict of murder if there had been beforethem some evidence concerning the treatment and condition of thepatient daring the sixty-five hours which preceded her death.
The symptoms which Dr. Joseph said lie had noticed have beenmentioned in an earlier part of this judgment . But during his cross-examination he admitted that in the Magistrate’s Court he may not havementioned all the signs and symptoms described by him at the trial.It does not appear from the record that lie stated the symptoms afterreference to any notes made contemporaneously. In these circumstancesthere was at least the possibility that the symptoms had not in fact beenclearly recognised by Dr. Joseph at the time lie examined the patient.This possibility was not adverted to in the charge to the Jury.
Apart from the medical evidence, the second important factor was thestatement made to the Police by the deceased woman. With regard tothis statement the learned Judge gave the following directions :—
“ This statement is evidence. The law permits you to take intoconsideration this piece of evidence. Usually a witness’s evidenceis tested by cross-examination and in this case the deponent is dead.In spite of the fact that there is no cross-examination because she isdead, still the law permits you to examine that evidence. It is inthe nature of a dying declaration. Examine that evidcnce.and if youare satisfied beyond reasonable doubt, accept what has been statedthere. Do not forget that there was no other witness to the incident
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Elaris v. Kuruppu
and the deponent herself is not before you, the law regards hexstatement as evidence in regard to the cause of death, and thecircumstances which led to her death. ”
In our opinion this direction only instructed the Jury that they couldact upon the deceased’s statement. But there was no caution as to therisk of acting upon the statement of a person who is not a witness at thetrial, and as to the need to consider with special care the question whetherthe statement could be accepted as true and accurate. Connected with thisomission there was the failure to direct the Jury that, even if the Appellantcaused tire devth of hi3 wife by a l.ni.iisteriig se ne liquid, the burden layon the prosecution to cxclule the ponibility of an accidental adminis-tration. Thuraimmy v. The Queen1. The Jury could thus have had theimpression thit the possibility of an accidental administration could beexcluded merely by reason of the failure of the accused to give evidence.A direction that the Crown must prove the guilt of the accused beyondreasonable doubt did not in these circumstances suffice to explain theparticular burden which rested on the prosecution in this case.
In our opinion the denial to the Defence of a proper opportunity tomeet the evidence of Dr. Amarasckcra, and the omission from the chargeto the Jury of requisite directions concerning the statements made by thedeceased woman and the possibility of accident, have led to a miscarriageof justice. We are not disposed in all the circumstances to order a newtrial. We set aside the conviction of the Appellant and the sentencepassed on him and we direct a verdict of acquittal to be entered.
Accused acquitted.