Punchirala v. The Queen
[Court of Criminal Appeal]
Present: G. P. A. Silva, S.P.J. (President), Slrlmane, J., and
W. G. PUNCHIRALA, Appellant, and THE QUEEN, RespondentC. C. A. 36 of 1970, with Application 628. C. 607j69—M. C. Trincomalee, 6949
Trial before Supreme Court—Accused’s unsworn statement from the dock—Evidentialvalue—Misdirection.
G. P. A. SILVA, S.P.J.—Punchirala v. The Queen
Where, nt a trial before the Supreme Court, the acousod makes a statementfrom the dock, the Judge would be misdirecting the jury if he tells them thatthey should consider the statement of the accused but that “ it is not of muchvalue having regard to the fact that it is not on oath' and not subject to cross-examination.”
Per Curiam—” While it was necessary to point out to the Jury the infirmitiesattaching to a statement from the dock, the only material in this case on behalfof the accuseu boing that statement, it was the duty of the trial Judge to leave 1the considerations of that statement, entirely to the Jury untrammelled byan expression of opinion by him.”
•A.PPEAL against a conviction at a trial before the Supreme Court.
R. S. R. Coomaraswamy, with Siva Rajaratnam, H. Mendis,T. Joganathan, S. C. B. Walgampaya, N. Vilcassim and (assigned)
M.Nassim, for the accused-appellant.
T. A. de S. Wijesundere, Senior Crown Counsel, with R. Abeysuriya,Crown Counsel, for the Crown.
Cur. adv. vuU.
June 23,1970. G. P. A. Silva, S.P.J.—
At the conclusion of the argument in this case we substituted for theverdict of guilty of murder found by the Jury a verdict of guilty ofculpable homicide not amounting to murder, and sentenced the accusedto a term of ten years rigorous imprisonment. We state below our reasonsfor the decision..
The accused-appellant in this case was convicted by an unanimousverdict of the Jury of the murder of one Appuhamy. The evidence forthe prosecution consisted of that of a medical officer who testified to anincised wound which penetrated the aorta, coupled with that of an eyewitness who described an unprovoked attack on the deceased and anotherwitness who met the accused shortly after the incident carrying a pointedknife with which he said he had stabbed a person from Golugedera, whichwas identified by another witness as the house of.the deceased. The lastmentioned witness obtained the knife from the accused and producedit at the Police Station and the accused too followed him a short whilelater.
In the submissions of counsel several criticisms were made of theHumming up of the trial Judge. It is sufficient for our purpose if we dealonly with those that influenced our decision to substitute a lesserverdict.
, It was contended that the learned trial Judge’s treatment of theaccused’s statement from the dock contained a number of misdirectipns.At a certain stage he stated to the Jury : “ A person making a statementfrom the dock can say what he likes, because it cannot be tested in cross-examination unlike the prosecution witnesses who gave evidence in the
G. P. A. SILVA, S.P.J.—Punchirala v. The Queen
witness box and who were cross-examined like Mudiyanse. There is thatinfirmity in regard to the statement of the accused, but subject to thatinfirmity you have to consider that statement. It is not of much valuehaving regard to the fact that it is not on oath and not subject to cross-examination. ” We think that the concluding sentence of this passage,taken in conjunction with the earlier observations conveyed an expressionof opinion which would have induced the Jury to reject the statement fromthe dock without sufficient consideration on their part. While it wasnecessary to point out to the Jury the infirmities attaching to a statementfrom the dock, the only material in this case on behalf of the accusedbeing that statement, it was the duty of the trial Judge to leave theconsiderations of that statement, entirely to tho Jury untrammelled byan expression of opinion by him.
Secondly, following upon this direction the learned trial Judge went onto observe as follows :—“ According to this .statement the deceasedman had partaken of arrack. That must have been just before his death,but it is in conflict with the medical evidence that the stomach wasempty. He died almost instantaneously after the injuries. It is a questionfor you to accept his testimony or the testimony of Dr. Mrs. Jayatillekewho says that there was nothing in the stomach of the deceased. ”It was submitted by counsel that the accused had not said anywhere inthe course of his statement from the dock that the deceased had consumedany arrack and that the consequent misdirection on this question of factgravely prejudiced the accused in that the wrong direction would haveunjustifiably, persuaded the Jury to reject as false the statement of theaccused. We feel that there is much force in this submission. Theexpression of opinion of the trial Judge that the unsworn statement of theaccused was of little value immediately followed by this wrong directionwhich contained a criticism not warranted by the facts would have leftvery little room to the Jury to give- the statement of the accused theconsideration that-it may have deserved.
The third criticism was that the learned trial Judge had not, in dealingwith the possible mitigatory pleas of grave and sudden provocation andsudden fight, given any direction to the Jury as to the quantum of theburden that rested with the accused, nor had he touched on the possibleinfluence of alcohol alleged to have been consumed by the accused on thegravity of any provocation he may have received, if his statement wasbelieved. Had such directions been addressed to the Jury and theearlier misdirections been avoided, we think that the Jury may well havereturned a verdict of culpable homicide not amounting to murder, havingregard to the suddenness of the incident, the absence of premeditationand the possibility of the accused having been under the influence ofalcohol at the time the offence was committed on the Sinhalese NewYear day.
These considerations would justify the substitution of a verdict ofguilty of culpable homicide not amounting to murder.
W. G. PUNCHIRALA, Appellant, and THE QUEEN, Respondent