BAS PAYABLE, C.J.—The Queen, v. Handy
[ In the Cottht op Criminal Appeal]
1959 Present:Basnayake, C.J. (President), Puile, J., andH. N. G. Fernando, J.THE QUEEN v. E. HANDYAppeal No. 50 of 1959, with Application No. 61S. C. 32—M. C. Galle, 5400
Trial before Supreme Court—Jury's verdict of acquittal—Judge’s disapproval of it—-Discharge of jury on that ground—Retrial—Plea of autrefois acquit—Must betried by jury—Failure of accused to raise the plea—Power of Court of CriminalAppeal to consider the plea—Miscarriage of justice—Court of Criminal AppealOrdinance, s. .5 (7)—Criminal Procedure Code, ss. 6, 230, 217, 213, 219, 330, 331.
Section 230 of the CrizninaJ Procedure Code does not entitle the presidingJudge to discharge the jury in a case in which the Judge disagrees with thejury’s view of the facts.
Where the jury’s verdict of acquittal is not duly entered on account of theJudge’s disapproval of it, the accused is entitled to raise the plea of autrefoisacquit if he is tried again for the same offence. The plea is one that must betried by the jury in accordance with the practice in England.
Where the aoeused fails to raise the plea of autrefois acquit timeously at thetrial, the Court of Criminal Appeal may consider that defence and acquit himunder section 5 (1) of the Court of Criminal Appeal Ordinance on the ground ofmiscarriage of justice.
-^^PPEAL, with application for leave to appeal, against a convictionin a trial before the Supreme Court.
Colvin JR. de Silva, with H. A. Chandrasena, M. L. de Silva and IS. B.Yannitarnby (assigned), for Accused-Appellant.
Ananda Pereira, Acting Senior Crown Counsel, for the Crown.
Cur. adv. vult.
September 8, 1959. Basnayake. C.J.—
This is an unusual appeal. On 1st April 1959 the appellant was triedon charges of murder of Danny Dissanayake and attempted murder ofAlbert Dissanayake. In the course of the trial the appellant gaveevidence on his own behalf and called two witnesses in his defence.12LSI
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BASIN AYAK33, C.J.—The Queen v. 'Handy
At the conclusion of the learned trial Judge's summing-up the juryretired to consider their verdict. What took place thereafter is thusrecorded in the transcript of the proceedings—
“ Clerk of Assize :
Q : Mr. Foreman, are you unanimously agreed upon your
verdict as regards each of the counts in the indictment ?
“ Foreman : Yes.
“ Clerk of Assize :
Q : By your unanimous verdict do you find the prisoner
guilty of the offence of murder on count No. 1 ?
“ Foreman : No.
“ Clerk of Assize :
Q : Bo you find him guilty of any other offence 1“ Foreman: No.
“ Clerk of Assize :
Q : By your unanimous verdict do you find the prisoner guilty
of attempted murder on count No. 2 ?
Foreman : No.
“ Clerk of Assize :
Q : Bo you find him guilty of any other offence ?
“ Foreman : No.
“ Clerk of Assize :
Q : That means you do not find this prisoner guilty of any
offence on this indictment ?
“ Foreman : Yes.
** Court to Clerk of Assize :
Bon’t record this verdict. I refuse to accept this verdict.”
The learned trial Judge then made the following order :—
“The jury in this case have returned a verdict of not guilty ofeither offence. The evidence in this case is quite ele.* r. The defencein this case was palpably false. A part of the evidence for the defencewent to prove the prosecution case. I can only conclude that thejury have neither understood the law on which I gave them adequatedirection nor understood the nature of the evidence and the impli-cations arising therefrom. In the circumstances 1 do not think it isgather necessary or desirable to ask $he |ury to reconsider the verdict a
BASNAYAKE, C.J-—The Queen v. Handy
and acting under the provisions of section 230 of the Criminal Pro-cedure Code, 1 think the interests of justice require that the accusedbe tried before another jury from a different panel.”
Thereafter the appellant was tried by another jury before the sameJudge on 15th April. At that trial also the appellant gave evidenceon his own behalf and called one of the witnesses whom he had calledat the previous trial. The jury after a deliberation lasting thirteenminutes returned a unanimous verdiei of guilty on both charges andthe appellant was sentenced to rigorous imprisonment for life on thefirst charge and rigorous imprisonment for five years on the secondcharge.
This is a convenient point at which to state briefly the evidence for theprosecution and the defence st the trial at which a verdict of acquittalwas returned. The chief witness for the prosecution was Albert Dissa-nayake the brother of the deceased. His story is as follows :—Theappellant was a man who lived about 100 fathoms from his house andhe had known him for fifteen years. At about 6.30 p.m. on the dayin question (19th May 1958) his deceased brother came home to give hima loan of Rs. 10 which he had sought from him. The money was neededto pay the fees of a lawyer whom he wished to retain iu a criminal casein which, he was charged with arson along with his younger brother RobertDissanayake, an elder brother of his, the appellant, and the appellant’sbrother-in-law Sardiris. At about 7.30 p.m., while the deceased wasstill there, the appellant came to the witness’s house and shortly afterthat his brother-in-law Sardiris also came. They discussed the questionwhether in addition to the proctor they had already retained anotherproetor should he retained on their behalf as there were five accusedin the case. In the course of their discussion Sardiris said, “ The Courtdoes not know the truth or otherwise of this allegation. You shouldnot be loafing here and there. You must try to retain another counselfor the case. ” The witness agreed and when he said, “ As we haveretained another lawyer the fees will be more and all will have to sharethe additional fee”, the appellant replied, in a loud tone, that he did notwant any additional lawyer and that he was not going to pay anythingmore. The witness then told the appellant that it was not necessaryto shout and that his children will be frightened and asked him to leavehis house. Whereupon the appellant left. The deceased who tookno part in the discussion about the case, as he was not an accused, wasseated on a bench in the verandah. The appellant returned aboutfifteen minutes later and exclaiming, “ I have, come to spend ”, struckthe deceased with a sWord. The witness sought to intervene and wasstruck by the appellant with the same sword. The witness’s wife whowas at the time nursing her infant in the hall of the house rushed intothe compound and shouted, " Gunapala is goiog away after committingmurder.” The prosecution did not suggest any motive for the attackon the deceased. The witness also denied that there was any enmityeither between the appellant and himself or his brother. In cross-examination it was suggested that the deceased and the witness were
BASNAYAKE, C.J.—The. Queen, «. Handy
injured in a brawl which occurred while the appellant, his brother-in-law, Danny, another brother of the deceased, and some others weregambling, not at the hands of the appellant but at the hands of someother person. It was also suggested that the appellant had won Rs. 300,
The appellant’s story is that he usually drank two cups of toddy atAlbert Dissanayake’s house. On the day in question also when hestepped in for his drink he found that gambling, which was a regularfeature at the house of the witness Dissanayake, was in progress andhe joined the party. In the course of the gambling the two brothersAlbert and Danny Dissanayake had an argument over a bet and Albertkicked the bottle lamp that was there. Albert and Danny then had afight. The appellant left the place when the fight started. Amongothers present were Sardiris, Robert Dissanayake, X. H. Martin, and twoothers. Martin the appellant’s witness said that there was gamblingin which he joined; hut that he left early and did not see what happened.There were two versions before the jury who. as judges of fact, wereentitled to decide which version they accepted as true.
At the second trial the appellant did not raise the plea of autrefoisacquit. He was defended by the same proctor who was assigned to himat the previous trial. The questions that arise for decision are—
(а)Is the trial Judge right in refusing to permit the verdict to herecorded at the earlier trial ?
(б)If he is not, has the appellant been acquitted at the first trial of theoffences of murder and attempted murder ?
If so, does the failure of the appellant at the second trial to raisethe plea that by virtue of section 330 of the Criminal Procedure Codehe is not liable to be tried preclude this Court from examining the legalityof the action taken by the trial Judge at the previous trial ?
There is no doubt that the appellant was at the first trial tried by acourt of competent jurisdiction for the offences of murder of DannyDissanayake and the attempted murder of Albert Dissanayake. Washe acquitted of the offences ? All trials before the Supreme Court areby a jury before a Judge (s. 216). It is the duty of the jury to decidewhich view of the facts is true and to return a verdict which under suchview ought, according to the directions of the Judge, to be returned(s. 245). The jury discharged that duty by returning a unanimousverdict of acquittal. The Registrar was under a duty in the circum-stances of this case to make an entry of the verdict on the indictmentas required by section 249 of the Criminal Procedure Code. That dutyhe was precluded from discharging by the order of the Judge. There isno provision of the Code which empowers the Judge to forbid the Regis-trar to make an entry of the verdict on the indictment. What the Judgemay do when the jury are ready to give their verdict or after they havegiven their verdict is to be found in sections 247 and 248. These sectionsread as follows :—
247.(1) When the jury are ready to give their verdict and are all
present the Registrar shall ask the foreman if they are unanimous.
BASjSTATAKE, C-J-—The Queen v. Handy
If the jury are not unanimous the Judge may require them toretire for further consideration.
After such further consideration for such time is the Judgeconsiders reasonable or if either in the first instance the foreman saysthat they are unanimous or the Judge has not required them toretire, the Registrar shall say (the jurors being all present) : * Do youfind the accused person (naming him) guilty or not guilty of the offence(naming it) with which he is charged ? 5
On this the foreman shall state what is the verdict of the jury. ”
“ 248.(1) Unless otherwise ordered by the Judge the jury shall
return a verdict on all the charges on which the accused is tried andthe Judge may ask them such questions as are necessazy to ascertainwhat their verdict is.
(2) If the Judge does not approve of the verdict returned by thejury he may direct them to reconsider their verdict, and the verdictgiven after such reconsideration shall he deemed to be the true verdict. ”
These sections do not authorise the action taken by the trial Judge,nor does section 230 under which he purported to act. That sectionreads—
" The Judge may also discharge the jury whenever the prisonerbecomes incapable of remaining at the bar and whenever in the opinionof the Judge the interests of justice so require. ”
It would appear from the observations of the learned Judge that in hisopinion section 230 authorises the presiding Judge to discharge the juryin a case in which the presiding Judge disagrees with the jury’s viewof the facts. The provisions of the Criminal Procedure Code whichprescribe the respective duties of the Judge (s. 244) and the jury (s. 245)in a trial by jury are designed to serve the interests of justice. Theyare served when the Judge does not encroach on the functions of the jury.Any departure from those provisions would defeat and not serve theinterests of justice. There are many instances in the judgments of thisCourt where convictions have been quashed because the Judge encroachedon the functions of the jury or usurped them. Where the jury in dis-charge of their duty of deciding questions of fact return a verdict itwould be wrong for the Judge to arrest the course prescribed by lawbecause be does not agree with their view of the facts. An exercise ofthe Judge’s authority in derogation of the express provisions of the Codewould amount to a denial of justice and section 230 affords no authorityfor the discharge of the jury in such a case.
We were referred to the case of Thomas Perera alias Bajidd1 as sup-porting the view that a Judge may, acting under section 230, dischargethe jury when he does not agree with their decision on questions of fact.We are unable to agree that Garvin J. held in that ease that section 230
* 29 N. L. B. 6.
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BASNAYAKE, C-J.—The Queen v. Handy
enables the presiding Judge to thwart the course of justice by dischargingthe jury ■whenever he does not agree with them. If that judgment iscapable of such an interpretation we wish to express, with respect, ourdisagreement with it.
In the instant ease the jury having, as they are empowered by the Codeto do fs. 245 (a)), decided which view of the facts is true and returned averdict which under that view ought according to the directions of theJudge to be returned, it cannot be said that the interests of justice requirethat they should be discharged without their verdict being recorded asprovided in section 249 which reads :
“ (1) The Registrar shall make an entry of the verdict on the indict-ment and shall then say to the jury the words following or words'to thelike effect:
‘ Gentlemen of the jury : Attend whilst your foreman signs yourverdict. The finding of yon (or of so many of you as the case may be)is that the prisoner A. B. is guilty ’ (or ‘ not guilty’).
The foreman shall sign the verdict so entered and the verdictwhen so entered and signed, but not before, shall be final
When by accident or mistake a wrong verdict is delivered thejury may before it is signed or immediately thereafter amend theverdict. ”
In forbidding the Registrar to make an entry of the verdict on theindictment and declaring that he refused to accept the verdict the learnedtrial Judge was acting not only contrary to the provisions of the CriminalProcedure Code but also against bis very directions to the jury. Hereis what the learned Judge said in his summing-up :
“ In this case, gentlemen, the prosecution must establish to yourcomplete satisfaction, and leave no reasonable doubt in your mind, thatit was this accused in the dock, Gunapala, who caused the death ofDanny by cutting him with some sharp cutting heavy weapon acrosshis shoulder and who also caused that injury on the shoulder of Albert.• * • »
“ In every criminal case, as you have been told at the commencementof the case, there is a presumption of innocence which surrounds theaccused person, it is there, as it were, a shield, which he can put forward,but to ask from the jurors a verdict of guilty the prosecution mustpierce that shield, pierce it in such a way that the jurors are leftin no doubt, no reasonable doubt, that the prosecution witnesses havesubstantially spoken the truth
“ It is your duty, gentlemen, to decide on the facts of this case.Now, you have seen those two witnesses, and you must make up yourminds whether you are satisfied they spoke the complete truth. Afterall, you have had an opportunity of listening to them here; listeningto their answers in cross-examination. In the course of this case youhave had the opportunity of listening to the accused and his witnessMartin and to the witness Robert Dissanayake.
BASNAYAKE, C.J.—The Queen v.'Sandy
<c Xow, in law, the jurors are the jadges of the credibility of wit-nesses, and proceed to judge as a judge would, of the credibility ofa witness.
“ Sometimes a Judge may intrude his opinion on the jury. Thelaw gives him that right, with this reservation, that even if he doesintrude his opinion on a question of fact, the jury are not bound by it.Why ? The law must always preserve to the jury, the sole judges onquestions of fact, the right to choose, and they do not give way evento the presiding judge on questions of fact. * Therefore, we have ourproper functions here in this Court. You are the sole judges of fact,and I am the sole judge on the law.”
It is difficult to reconcile the action taken by the Judge with thedirections given by him. And having regard to the facts of this case inwhich there were two versions of what occurred on the night in questionin the house of Albert Dissanayake, it is not clear why the learned Judgeprohibited the entering of the verdict on the indictment. The integrityof the jurors is not impugned nor is it alleged that anything which affectstheir verdict occurred or came to the trial Judge’s notice. In the circum-stances there is no justification in law for the course adopted byhim.
The question then is whether, although there is no formal entry of theverdict under the foreman’s hand, in law it can be held that the appel-lant has been acquitted of the offences with which he Was charged. Weare of the opinion that it can he so held. The fact that the verdict wasnot entered on the indictment does not deprive the appellant of thebenefit of the verdict. Except for the entry on the indictment noother formal step remained to be done in order to give efficacy to it.The law does not require the trial Judge to make a formal order of acquit-tal. That result follows automatically on the verdict. The effect ofsubsection (2) of section 249 is that the verdict once entered on the indict-ment cannot be altered except in the circumstances set out in subsection(3) of that section. It does not mean that where a verdict of acquittalhas been duly returned by the jury it is not a legal verdict till it is enteredas required by section 249 (1) and signed as prescribed by subsection (2)of that section.
The position then is that the appellant was entitled at the secondtrial, if he chose to do so, to take the plea prescribed in section 331 ofthe Criminal Procedure Code. The plea of autrefois acquit when pleadedis one that must be tried and disposed of before the issues raised by theother pleas are tried (s. 330 (2)). The plea is one that must be tried bythe jury in a case before the Supreme Court. That is the practice inEngland, and, as neither the Criminal Procedure Code nor any otherstatute makes any special provision in that behalf, the law applicableis the law relating to Criminal Procedure for the time being in force inEngland which must be applied so far as it is not in conflict or inconsistentwith the Code and can be made auxiliary thereto (s.6). The trial of theplea of autrefois acquit by jury is not only not in conflict or inconsistent
BASNAYAKE, C.J.—The Queen v. Sandy
with, the Code but it is also in accordance with it for section 216 (1) enactsthat all trials before the Supreme Court shall be by jury before a Judgeor a Commissioner of Assize.
This brings us to the last of the questions that arise for decision on t.biaappeal. If the appellant can bring his appeal within the ambit of anyone of the grounds specified in section 5, should the fact that he failed toraise the plea timeously preclude us from exercising our powers undersection 5 ? The material portion of that section reads —
" (1) The Court of Criminal Appeal on any such appeal againstconviction shall allow the appeal if they think that the verdict of thejury should be set aside on the ground that it is unreasonable or cannotbe supported having regard to the evidence, or that the judgment ofthe court before which the appellant was convicted should be set aafdRon the ground of a wrong decision of any question of law or that on anyground there was a miscarriage of justice, and in any other case shalldismiss the appeal:”
Of the grounds on which this Court may allow an appeal only the lastmentioned need be considered in the instant case. Was there a mis*carriage of justice in this case caused by the denial to the appellant of thebenefit of the verdict returned in his favour at the previous trial ? Thereundoubtedly was. It is a miscarriage of justice for an accused person,without any legal authority in that behalf, to be denied the benefit of aunanimous verdict of the jury returned in his favour in accordance withthe directions of the Judge and to be tried again by another jury with justthe opposite result. If such a course were permitted an accused personwould be liable to be brought to trial repeatedly for the same offence tilla jury returns a verdict of guilty. In the case of Annie Tonks1 theCourt of Criminal Appeal in England dealt with a somewhat similarmatter by allowing the appeal on the basis of a notional plea that hadbeen tendered and wrongfully ruled upon. In doing so Reading L.C.J.observed —
" Counsel for the appellant has contended that we must regard thiscase as if a plea of autrefois convict had been properly entered at thetrial, and as if the judge had wrongfully ruled as a matter of law thatthere was no case to go to the jury upon the point. We think that thatview is right.”
We have not deemed it necessary to resort to such an expedient as inour view section 5 is wide enough.
We accordingly quash the conviction of the appellant and direct thata judgment of acquittal be entered.
1 11 Or. App. R. 284.