010-NLR-NLR-V-70-THE-QUEEN-v.-S.-A.-JOGREST-PERERA.pdf
The Queen v. Jogrest Perera
27
[Court of Criminal Appeal]
1967 Present: H. N. G. Fernando, C.J. (President), Abeyesundere, J., andAlles, J.THE QUEEN v. S. A. JOGREST PERERAAppeal No. 31 of 1907, with Application No. 41S. C. 141—M. C. Polonnaruica, 15137Trial before Supreme Court—Summing-up—Misdirection—Duty of Judge to refer topoints in favour of defence.
In a trial before the Supreme Court it would be a misdirection to instruct theJury that they must convict the accused if, in fact, the defence position insubstance was that the prosecution evidence was true, but incomplete.
It is the duty of the Judge to present fairly to the Jury evidence whichtended to favour the case for the defence.
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H. N. G. FERNANDO, C.J.—The Queen v. Jogrcst Perera
.A.PPEAL against a conviction at a trial before the Supreme Court.
R. S. R. Goomaraswamy, with A. S. Mohamed, Gemunu Seneviratveand F. C. Perera (Assigned), for the accused-appellant.
J.G. T. Weeraratne, Senior Crown Counsel, for the Attorney-General.
Cur. adv. vult.
June 1, 1967. H. N. G. Fernando, C.J.—
It was common ground in this case that the Appellant caused the deathof one Jayakody by striking him on the head with an axe. TheAppellant’s defence to the charge of murder, that he acted in the exerciseof the right of private defence, was obviously rejected by the Jury whenthey returned a verdict of murder.
Two prosecution witnesses deposed to the incident. One of them statedthat on his return after a morning’s work on a bicycle he stopped near aboutique with the idea of reading the morning newspaper and sat forsometime on the luggage-carrier of the bicycle. He saw that Jayakodywas seated on a bench in the verandah of the boutique reading a newspaper.He also saw the Appellant come out of the boutique with an axe in hishand, and the Appellant assaulted Jayakody once with the axe. TheAppellant thereafter went inside the boutique and made his exit from therear of the boutique. The second witness stated that he was reading anewspaper under a tree near the boutique when he heard the sound of athud. He then looked towards the boutique and saw Jayakody fall tothe ground with his head bleeding ; he also saw the Appellant goinginside the boutique with an axe in his hand.
The Appellant admitted this assault on Jayakody. But he gave inevidence a version of events preceding the assault. He himself hadcome to the boutique and had a cup of tea; he thereafter sat dowm on achair in front of Jayakody, who having read a newspaper, folded it andplaced it on the bench. He then spoke to Jayakody in a 1owt tone aboutcertain things which Jayakody had previously done to him, and finallyasked whether Jayakody intended to send him back to liis village. Jaya-kody then replied cc I do not propose to send you to your village; I willsend you to the moon ”. Jaj akody then pulled out a knife. TheAppellant then, in fear for his life, rushed into the boutique and seized anaxe. At this stage Jayakody wras near the door-way of the boutiquewith knife in hand, and the Appellant struck him with the axe.
In cross-examination of the two prosecution witnesses, assigned Counselsuggested to them that there had been before the assault a loud andangry exchange of words between the Appellant and Jayakody. Thisthe witness denied. It is unfortunate that Counsel had apparentlymisunderstood his instructions, for the Appellant’s evidence was that
•ET. N. G. FERNANDO, C.J.—The Queen v. Jogreet Perera
29
the conversation had been in a low tone. That being so, there was noreal conflict between the prosecution and defence versions as to thismatter ; in the case of the second witness in particular, who was readinga newspaper before he heard a thud, his evidence in no way conflictswith the Appellant’s version of the events which preceded the assaultwith an axe.
The two prosecution witnesses denied that they saw a knife in thehands of Jayakody. But the defence called one Weerasekera who hadbeen a prosecution witness at the non-summary inquiry. This witnessstated that when Jayakody’s body was lifted from the floor of theverandah, he saw a knife which had been lying under the body. Thelearned Commissioner was apparently aware that Weerasekera had givensimilar evidence about the knife in his deposition. Nevertheless hecommended to the Jury a prosecution suggestion that Weerasekeragave false evidence “ to help ” the Appellant. Now this suggestion wasnot put to Weerasekera by Crown Counsel, nor was there any evidencewhatsoever of any friendship between the witness and the Appellant.Hence the idea that Weerasekera was trying to help the Appellant was amere conjecture, and it was unjust and unfair to invite the Jury to actupon it.
The Appellant gave uncontradicted evidence that Jayakody hadpreviously acted in a most aggressive manner towards the Appellant.The Appellant had made several complaints to the police against Jaya-kody :—that Jayakody had brought a gun, threatened to kill him,and up-rooted fence sticks in his garden ; that Jayakody had taken awayhis bull and branded it ; that Jayakody had cut the barbed wire on hisfence. The learned Commissioner referred to these matters but only as apreface to the following observations :—
“ Eventually he (Appellant) realises that he could not get the policeto act in these matters and, the suggestion for the prosecution is, thaton this day after the incident of a couple of days earlier when he metthis man for the first time he decided to punish him in this fashion,that is the suggestion for the Crown ; that is the motive that the Crownsays that impelled the man to act in this fashion. ”
This evidence of Jayakody’s previous aggression and acrimony towardsthe Appellant supported the defence version that on this morning alsoJayakody had been threatening and aggressive. The summing-up doesnot contain even a bare statement of the mode in which this evidencemight assist the defence. Instead, the evidence was presented to theJury only as being hostile to the defence case, and it was unfair thus topresent it.#
An important point in the Appellant’s evidence was that on the spurof the moment he seized an axe which he found inside the boutique-
1**—II 7947 (10/67)
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H. N. G. FERNANDO, C.J.—The Queen v. Jogrest Perefii
This fact, if true, negatived the Commissioner’s theory that the Appel-lant had “ decided to punish Jayakody ”, but its proper significancewas not mentioned in the summing-up. Here again the Commissionerfailed to sum up adequately evidence on which the defence relied. Inappeal, the Crown has conceded that the axe had in fact been in theboutique.
The evidence established that the Appellant went of his own accordto the Police Station after the incident, and his statement was recordedquite soon thereafter. He had in the statement alleged that Jayakodyhad made the same remark “ I will send you to the moon ”. Thereafter(according to the statement) Jayakody had tried to take something fromhis waist and the Appellant thought that Jayakody was trying to stabhim, and out of fear the Appellant then went into the boutique and• brought the axe with which he hit Jayakody. The learned Commissionerquite properly told the Jury that this statement had not referred toJayakody having a knife in his hand and thus contradicted the Appel-lant’s evidence on the point. But the Jury were not directed that thestatement generally corroborated the Appellant’s evidence, and that itcontained the substance of the version that the Appellant acted in self-defence. Nor were they directed that Weerasekera’s evidence concerninga knife could suffice to explain that the Appellant’s omission to mentionthe knife in his statement had been inadvertent.
The Jury were, on the whole case, directed that “ if what the accusedsays is the truth, the version the three witnesses speak to …. isnot true ”. The prosecution witnesses did not claim to have seen orheard everything ; their evidence did not render improbable the defenceversion of a conversation in low tones before the assault. It was onlythe first -witness who actually saw the assault by the Appellant, and thiswitness did not claim to have been continuously watching the verandahin which Jayakody had been seated ; the truth of his evidence was notcontested by the defence, which only relied on an incident a few momentsearlier which may not have been noticed by the witness. In thesecircumstances, it was a misdirection to instruct the Jury that theymust convict if the prosecution evidence was true. In fact, the defenceposition in substance was that the prosecution evidence was true, butincomplete.
In view of this misdirection, and the omission of the learned Commis-sioner to present fairly to the Jury evidence which tended to favour thecase for the defence, we set aside the verdict and sentence and acquit-the Appellant. We did not consider this a fit case to exercise ourdiscretion to order a new trial. •
Accused acquitted.