The Queen v. Sumanasena
[In the Court of Criminal Appeal]
1963Present : Basnayake, C.J. (President), Herat, J., andAbeyesundere, J.HE QUEEN v. M. G. SUMANASENAAppeal No. 74 oj 1963, with Application No. 768. G. 86—M. G. Kegalle, 41,188
Evidence—Proof of suspicious circumstances against accused-—Inference of guiltcannot thereby be justified—Burden of proof.
In a criminal case suspicious circumstances do not establish guilt. Nor does-the proof of any number of suspicious circumstances relieve the prosecution ofits burden of proving the case against the accused beyond reasonable doubt,and compel the accused to give or call evidence. 1
1 (1858) 1 F. cfc F. 344.
BASNAYAKE, C. J.—The Queen v. Sumanaaena
-/APPEAL, with application, against a conviction in a trial before theSupreme Court.
M.Kanakaratncm (assigned), for Accused-Appellant.
R. Abeysuriya, Crown Counsel, for Attorney-General.
October 15, 1963. Basnayake, C.J.—
The only point that arises for decision in this case is whether thefollowing direction of the learned Judge is wrong in law and if sowhether it influenced the verdict—
“ I told you that I agree with Counsel for the defence that the accusedis presumed to be innocent. It is for the prosecution to establish hisguilt. The accused does not have to give evidence. He need not evencall evidence, but at the same time I must tell you, if you are satisfiedthat there are many suspicious circumstances proved against theaccused and those suspicious circumstances when taken together, thatis taken cumulatively, make up a sort of a strong case against theaccused and if you believe that if he is innocent of the offence it is inhis power to offer an explanation of those suspicious circumstances andhe refuses to explain those suspicious circumstances, it is a reasonableand justifiable conclusion that he is refraining from explaining thosecircumstances because those circumstances cannot be innocently ex-plained. I have tried to put in my own words what was said by alearned Judge a long time ago. This is what the Judge said, I willrepeat it to you because I find you are taking a keen interest in whatI am saying and you are taking notes of what I am saying. In effectthere is no difference from what I have said. I will quote to you thewords of the Judge : ‘ The accused has made no attempt to explainaway these suspicious circumstances nor indeed was he bound to do so.Nevertheless, if he refused to do so where a strong prima facie case hasbeen made , out and when it is in his own power to offer evidence, ifsuch exists, in explanation if such suspicious appearances (sic), whichwould show them to be fallacious and explicable consistently with hisinnocence, it is a reasonable and justifiable conclusion that he refrainsfrom doing so only from the conviction that the evidence so suppressedor not adduced would operate adversely to his interest. ’ ”
In our opinion the learned Judge’s direction is wrong. Suspiciouscircumstances do not establish guilt. Nor does the proof of any numberof suspicious circumstances relieve the prosecution of its burden ofproving the case against the accused beyond reasonable doubt and compelthe accused to give or call evidence. We are unable to reconcile what thelearned Judge said earlier in his summing-up with what he said in thepassage to which exception is taken. The burden of establishing circum-stances which not only establish the accused’s guilt but are also inconsis-tent with his innocence remains on the prosecution throughout the trial
Fernando v. Cooray
and is the same in a case of circumstantial evidence as in a case of directevidence. The words quoted by the learned Judge appear to us to be thewords attributed to Lord Ellenborough in the case of Rex v. Lord Cochran&■and others l. The report of the trial in which he expressed those obser-vations is not available in any of the libraries in Hultsdorf and it is there-fore not p ossible to ascertain the context in which it was stated. In viewof the fact that this opinion was expressed by Lord Ellenborough in 1814before the Criminal Evidence Act and at a time when an accused personhad no right to give evidence on his own behalf, it is unthinkable thathe thereby intended to impose on the accused a burden which the law didnot permit him to discharge. It would appear from the fact that Rexv. Cochrane and others is not referred to in the recent editions of suchauthoritative text books on evidence as Taylor and Phipson that thedictum of Lord Ellenborough is no longer good law even in England.In our opinion the doctrine of Lord Ellenborough has no place in thescheme of our criminal law. What the learned Judge stated at the con-clusion of his summing-up negatives the effect of what he correctly saidearlier, and it would appear that the jury retired to their room carryingwith them typescripts of the erroneous dictum of Lord Ellenborough.
We are unable to say that the verdict of the jury was not influencedby the passage in the summing-up which they had' before them inwriting at the time of their deliberations. .The conviction must thereforebe quashed. We have carefully considered the question whether weshould direct that a judgment of acquittal be entered or order a newtrial. Having regard to the facts on which the prosecution relied and tothe fact that the offence was committed as far back as September,1961, we do not think that this is a case in which we should put theaccused in jeopardy once more.-
We therefore quash the conviction and direct that a judgment ofacquittal be entered in his favour.
THE QUEEN v. M. G. SUMANASENA