127-NLR-NLR-V-43-THE-KING-v.-MARTHINO-et-al.pdf
521
DE KRETSER J.—The King v. Marthino.
[Court of Criminal Appeal.]
Present: Soertsz, Keuneman, and de Kretser JJ.
THE KING v. MARTHINO et al.
29—M. C. Anuradhapwra, 2,880.
Court of Criminal appeal—Application for leave to appeal on the facts—-Application to add fresh ground of appeal—Leave refused.
Where, on an application for leave to appeal on the facts Counsel soughtto amend the application by alleging misdirection in the charge to the
Jury,—
Held, that the application to add a new ground of appeal should notbe allowed, as the notice of appeal had been drafted by a lawyer.
The King v. Burke (43 N. L. R. 465) followed.
The King v. Seeder de Silva (41 N. L. R. 337) distinguished.
A
PPEAL from a conviction by a Judge and Jury before the 3rdMidland Circuit, 1940.
J. E. M. Obeyesekere, for appellants.
E. H. T. Gunasekera, C.C., for respondent.
Cur. adv. vult.
March 7, 1941. de Kretser J.—
Counsel first presented the application for leave to appeal on the factsand this was refused. He sought to amend his application by allegingmisdirection by the presiding Judge in his charge to the Jury but the Courtdid not allow the amendment, acting on the authority of Hex v. Burke1which itself followed Rex v. Wyman ’ and Rex v. Cairns *. Counsel referredus to the earlier case of Rex v. Seeder de Silva This was one of the firstcases argued before this Court and the objection of misdirection had been
» 43 N. L. R. 465.’« 13 Cr. A. R. 163.
3 20 Cr. A. R. 44.1 41 N. L. R. 337.
522
DE KRETSER J.—The King v. Marthino.
taken as a point of law. This Court held that it was not a point oflaw but allowed argument. It held that this Court will as a generalrule refuse to entertain grounds not stated in the notice of appeal,but would relax the rule where the appellant was without legal aidand had drawn his own notice of appeal. In the case before us thenotices had been drafted by a lawyer. The same advocate whoappeared at the Assize trial appeared before us and would have notedany misdirection which was patent and not discovered as a result of dili-gent dissection of the charge as it appears after being typed.
Counsel next submitted his appeal on two points of law, viz.—
that the evidence in the case did not establish a common intention
on the part of the accused, and
in particular it did not establish it in the case of the 9th, 10th, and
lljh accused.
Having given the "matter careful consideration, we are of opinion thatthere was evidence on which the Jury could have found common intention.It is impossible to place on record every bit of evidence which leads to afinal impression. I shall set out the main outlines of the evidence.
There is one difficulty at the very outset and that is the fact that wehave no indication as to What the view the Jury took of certain parts of theevidence, particularly the evidence of Ram Singh and Weerasinghe,two dismissed employees of Mr. Muhuseen & Co. We do know thatCrown Counsel and the presiding Judge did not accept their evidenceas being entirely satisfactory. This is an important matter to bearin mind, for appellants’ Counsel drew very largely upon the evidenceof these two witnesses, which in some respects was contradictory of theevidence given by the witness Buddadasa. The contradictions, how-ever, did not affect the substance of the case.
The main points in the evidence are : —
The Mant Bus Company of which most of the accused are employeesowns 18 buses, many of them plying between Matale and Anuradhapuraand others plying between intermediate stations or along neighbouringroutes. In 1939 a rival bus sought-to ply between Matale and Anurad-hapura. It was referred to during the argument as the M. M. Bus.The Mant Bus Co. objected to the grant of a licence but a licence wasgranted in December, 1939, for the year 1940. The licence requiredthe M. M. Bus to leave Matale at 8 a.m. and arrive at Anuradhapuraa t 1 p.m. and to leave Anuradhapura at 4 p.m.
It was contended that the Mant Bus Co. could have had no grievanceover such a licence There was, however, no evidence on their part.On the contrary, Weerasinghe alleged that the M. M. Bus usually carriedan extra number of men as they feared trouble and had to be preparedto retaliate. Appellant seized upon this evidence to suggest that theM. M. Bus had prepared to make trouble, but why it should do so ifmatters had been satisfactorily adjusted and why it should beard the lionin its den is not explained. One of the difficulties in the case is the wealthof suggestions unsupported by evidence and often not consistent one withanother.
523
DE KRETSER J.—The King v. Marthino.
A reasonable view would be that feeling did exist between the twocompanies.
The M M. Bus service started on January 25. The incident whichforms the basis of the present charge occurred on February 3.
The M. M. Bus was coming into Anuradhapura about 1 p.m.It was a time at which it was due and might be expected to arrive.According to Buddadasa there were only three employees in it, viz.,himself, the conductor, Ram Singh, the driver, and Babanis, the cashier.According to Ram Singh and Weerasinghe there were 6 or 7. The onlypersons injured were the three named by Buddadasa. A Sergeant ofPolice was in a neighbouring hotel and rushed up, the Inspector of Policearrived very quickly, men alleged to be passengers were in the buses,but no unchallenged witness speaks to the presence of these additionalemployees. But assuming they were in the bus and took no part in theaffray I fail to see how their presence affects the case.
When the M. M. Bus arrived at. what is called the “Jaffna Junction”it saw bus T 207 driven by the 11th accused halted there and this busfollowed it closely. On arriving opposite Mant’s garage it found Z 1824drawn up along the road at a halting place in front of the garage andjust then E 671 driven by 10th accused emerged and going more or lessacross the road, halted. The road is said to be 24 feet wide. Owingto the positions of Z 1824 and E 671 the M. M. Bus found its way blockedand was brought to a halt abruptly. T 207 hemmed it in from behind. Thethree employees were immediately attacked, the assailants coming mainlyfrom the garage premises.
The affray itself cannot be and is not denied. The defence suggestedthat the M.M. Bus conductor tried to secure two passengers for Matalewhom the Mant Bus runner was trying to get for their bus and a fight(ensued. This sugggestion was before the Jury and always remaineda suggestion only. Now is it-likely that the M.M. Bus which was justcoming in and which would not be leaving for Matale till 4 p.m. would tryto secure passengers for Matale before 1 p.m. ? and is it likely that therebeing a Mant Bus leaving for Matale at 1.30 p.m. any passenger wouldwait till 4 p.m. ? and is it likely that the M.M. Bus would adopt thosemethods right opposite Mant’s garage, even if they had seven men in thebus ? and would they try. them just when they were hemmed in onevery side ? If then the Jury rejected this suggestion it can hardly be saidthey were not justified in doing so and if this suggestion be rejected thereremains the sudden attack on the M.M. Bus and its employees, accountedfor in only one way and that the case for the prosecution.
Now, is the position in which the M.M. Bus found itself due to aseries of coincidences ? It was certainly hemmed in on four sides and itwas undoubtedly attacked. Taking each item by itself it may be possibleto give it an innocent interpretation but taking it in conjunction withothers, as we must, the aspect is at once changed.- Let us examine thecase of the 9th, 10th, and 11th accused. It is urged that 9th accusedwas lawfully at a halting place and was not seen to take part in the attack
524
DE KRETSER J.—The King v. Marthino.
and that his presence was, therefore, as consistent with innocence as withguilt. That may be so if he is taken apart in that way. But once allthe other circumstances point to a plan of attack it is difficult to believethat he alone of the Mant Bus Co. was ignorant of the plan or disapprovedof it. The conductor of his bus and the runner were both accused.He gave no evidence explaining how he happened to be there or thathe was unaware of any plan and in the circumstances of this case he shouldhave given evidence if he had anything to say for himself. I have sofar not questioned the propriety of his being at a halting place. Butwas that a proper place for him to be at? It was a halting place and notthe starting place, the latter being apparently the bus stand. There isevidence that there is a hotel close by from which passengers mightbe expected and there is evidence that they enter the appropriate busin the garage compound, why then take it to a halting place where itmight displace another bus travelling along the road? E 671 scheduledto start at 2.30 p.m. was, it is alleged, leaving for the bus stand. It wasgoing there 1£ hours ahead of time. Why then was Z 1824 scheduled tostart at 1.30 still lingering there? This was the least old of the busesand this stood the least chance of a direct collision.
There were a number of circumstances which the Jury had before themand it is impossible to say that there was not sufficient evidence for themto arrive at the conclusion they did. The position of the 9th accuseddiffered from that of the other two drivers only in the fact that he hadcompleted his movement and taken up his position while they wereseen in the act of moving.
It was alleged that the 11th accused was returning after having had hisbus washed—again there was no evidence to this effect. It was provedhe had halted near the “Jaffna Junction” and this was not denied. Itwas sought to explain his presence there by suggesting that passengerscoming from Jaffna whose destination was Matale had to change atAnuradhapu.ra and so T 207 was there to take them up. But surelythe most convenient place at which to change would be the Hotel near'the garage and the bus into which to change should have been Z 1824,if that was really going to Matale. And again if T 207 was waiting for thepurpose suggested why did not wait till the bus from Jaffna came?Why did it follow so closely the M. M. Bus? Its conduct is hardly explicable .except upon the basis of-a prearranged plan.,
Then take E 671. Having a clear view before it, seeing Z 1824 takingup some of the road, why does it go across the road at the crucial moment?If it' intended to go to Anuradhapura why did it not do so but halt acrossthe road?
I have indicated sufficiently that the evidence is a substantial compactmass and to disintegrate the evidence into fragments and to examine eachfragment is hardly to do justice to the evidence as a whole.
The appeal fails and is dismissed.
Appeal dismissed.