032-NLR-NLR-V-57-THE-QUEEN-v.-K.-G.-GUNAWARDENE.pdf
■ ■[lx TIIE Cot;TIT OF CRIMINAL APPEAL] .;,
-1955 Present: Basnayake, A.C.J. (President), Gratiaen, J.,and -.' Weerasooriya, J.
THE QUEEN v. K. G. GUNAWARDENEApplication 147 of 1955S. C. G—31. C. Avissawella, 14,7 S5
Court of Criminal Appeal—Conviction for murder—Appeal therefrom—Grounds of■. • • appeal other than those raised in the jxlition of appeal—Power of Court to consider
. them.■
Charge- of murder—Burden of proof—Misdirection.
Although, in the enso of u conviction involving sentence of death, tiic prisoner
cannot claim as of right to make submissions in the Court of Criminal Appealexcept on grounds specified in his petition of appeal or application for lenve toappeal, the Court itself may set aside the conviction on any other ground which is•sufficiently substantial to justify a decision that the verdict should not beallowed to stand.-.
Per Curiam—“ Let it be said in conclusion that it is quite proper (amithat it is indeed his duty) for on Advocate (whether he represents the defenceor the Crown) to bring to the notico of this Court any substantial matter which,though not formally raised within the prescribed limit of time, neverthelessmerits consideration in a pending appeal or application. The assistancewhich the Court of Criminal Appeal expects in such a situation must, of course, jbe given with a due sense of responsibility. ”
The issues involved in a prosecution for murder were of such nature that1 bo accused could only have been convicted of murder if, at the end of the whole-case, the jury wero perfectly satisfied that he was the person who had stabbedthe deceased, and that he had thereby caused her death with a “ murderousintention In the course of tho summing-up, however, the Judge stated thatthe jury’ could not'acquit the nccuscd unless they were convinced that the storyfor the prosecution was improbable and that they’ should consider the wholecose by’ applying the “ test of probability’
field, that the conviction must be quashed for misdirection ns to the burdenof proof.
jA-PPUCATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
31. 31. Kvntarakulasinghaut. with I. Poem (Assigned), for theAccused-Applicant.
A. G. AUcs, Crown Counsel, for the Attorney-General.
Cur. adv. vidt.
November 15, 1955. Gratiaen, J.—-.
The applicant was convicted at- the Avissawella Assizes of the murder ofa young woman named Jane Nona. When the deceased woman andher husband Pinhnhiy were walking in the direction of her mother’s lionsc
shortly after S.30 p.m. on 27th November 19.74 n man suddenly emergedfrom the darkness and, having stabbed her once in the chest, ran away.The blade of the knife had cut through her second left rib and, accordingto Dr. Sella, injured the large blood vessels at the base of the heart-. Inthe doctor’s opinion, she must have died within a few minutes.
The applicant pleaded not guilty to the chaige, and the issues which-arose for the jury’s decision were (1) whether his identification had been■established beyond reasonable doubt, and if so (2) whether the-circumstances pointed irresistibly to the inference that the injury resultingin Jane Nona’s death had been inflicted by him with the requisite criminalintention which is an element of the offence of murder, or, alternatively,with guilty knowledge so as to form the basis of a conviction for culpablehomicide not amounting to murder. No evidence was led or relied onwhich could support any special pleas of justification or mitigation. Ifthe issue as to identification was answei-ed against the applicant, the jury- -could not but return a verdict against him either of murder or of culpablehomicide not amounting to murder or of grievous hurt.
With regard to the issue of identification, the Crown relied on the•evidence of Pinhamy who claimed that, although lie had previosuslymet the applicant only once, he clearly saw the applicant stab Jane Nonaon the night in rpiestion. Pinhamy was cross-examined for the purposeof raising doubts as to the reliability of his purported identification.The Croa ii also relied on a statement-, admissible under section 32 (1)
•of the Evidence Ordinance, alleged to have been made by Jane Nona toPinhamy immediately before she died to the effect- that " Gunawardene ”had stabbed her—“ Gunawardene ” being the name by which the appli-cant was known to her. The witnesses Ran Ethana and Sirisena alsoclaimed to have heard Jane Nona’s shouts to the same effect althoughthey were some distance away from the scene of the crime. Theevidence of Pinhamy, Ran Ethana and Sirisena with regard to this dyingdeclaration was attacked by the defence as unreliable.
Einally, the Crown relied on the presence of human blood stains on theapplicant-’s sarong when he was arrested within a few hours of the incident,and on the discovery of a pointed knife (P2) which had been concealedby someone near a stream not far from his home.
Mr. Kumarakulasingham who appeared for the applicant very franklyinformed us that lie could not support the argument that the verdictcould not reasonably have been returned by a jury upon proper and-adequate direction from the presiding Judge. As a complaint ofunreasonableness ” can only be entertained upon the assumption thatthe summing-up was not tainted by misdirection, the ground of appealrelied on in the application necessarily fails.
Mr. Kumarakulasingham then referred us to certain passages in thesumming-up which might well have been relied on as a separate groundof appeal against the conviction. Mr. Kumarakulasingham explainedthat, in view of the judgment recently pronounced in Reg. v. Pintherisct al1, he could not claim the right to make a submission that the verdict
(I96o) 67 A”. L. It. 49.
must be quashed on grounds not specified in the notice of applicationfor leave to appeal. Nevertheless, he said, he considered it to be hisduty to bring this matter to our notice in order that ive might considerwhether or not the verdict of the jury ought to be allowed to stand.
In Pintheris' case (supra) the convictions of two accused persons at theMatara Assizes were quashed on certain grounds which had not beenspecified in their notice of appeal. The majority of the Court pronounced,however, that in future cases argument would be “ limited only to mattersof law raised within the prescribed limit of fourteen days ”.
Although no appellant or applicant for leave to appeal may claim asof right to make submissions except on grounds particularised incompliance with the terms of the Ordinance, this does not mean that theCourt itself is powerless, when disposing of an appeal or application,to set aside a conviction on any other ground which is sufficientlysubstantial to justify a decision that the verdict under appeal should notbe allowed to stand. Indeed the orders of acquittal made in Pintheris*case (supra) are themselves notable precedents for the exercise of thesepowers. We therefore agreed to examine the questions raised by. Mr. Kumarakulasingham as amicus curiae.
The passages in the summing-up to which our attention was drawn allrelate to the burden of proof of guilt. In this particular case, the onuswas clearly on the Crown to establish beyond reasonable doubt againstthe applicant every fact which was material and necessary to constitutethe offence of murder or alternatively of a lesser offence of which he couldproperly have been convicted on the indictment. The applicant couldonly have been convicted of minder if, at the end of the whole case, thejury u ere perfectly satisfied that he was the person u ho had stabbed JaneNona, and that ho had thereby caused her death with a “ murderousintention ”. It is therefore a pity that the learned Judge did not confinehis direction as to the burden of proof to his preliminary observationthat “ if (the jury) had any reasonable doubt in weighing the evidence,(they) Avere bound to give the benefit of such reasonable doubt to theaccused ”. Unfortunately, hoAvever, he made certain later observationsAvhich could not be reconciled Avith his earlier elucidation of the trueprinciple. For instance he said : –..
“ In this particular case the position taken up b3r the Proctor whohas appeared for the accused is that he has let loose upon you a bundleof reasonable doubts and you Avould have no alternative but to acquithim. He has also commented upon ivhat he has considered to beimprobabilities. In considering the defence, gentlemen, to Avhich Ishall refer later, you must know that the Iuav does not demand thesame high standard of- proof which is required to sustain theprosecution. It is sufficient for the accused or his lawyer to raise suchquestions on the evidence already led with a view to convincing you that ti-ts an improbable story. You have !o be satisfied, before you. acquit theaccused, that the story for the prosecution is imjjrobable. In consideringthat aspect of the matter you only take into account a mere balance ofprobabilities.”.
.Again, in dealing with an item of evidence relied on by the Crown withreference to the issue of identification, he said :
“ As I said to you, gentlemen, in considering the defence you have toconsider it on a balance of probabilities. ”
and,•
“You have to consider the whole case by applying the test ofprobability. ”
These directions were entirely inappropriate in the context of the issueswhich actually called for decision by the jury in the case. No evidencowas led upon which the defence could call in aid any of tho general•exceptions to criminal liability laid down in Chapter 4 of the Penal Code ;nor was there evidence of mitigating circumstances which could bringthe applicant’s case within one or other of the exceptions to section 294.It was therefore quite wrong to leave the jury with the impression that anyissue of fact could be decided against the applicant on a mere balance ofprobability or by applying a “ test of improbability The proposition■that the jury could not acquit the applicant unless they were “ convinced ”■or “ satisfied ” that “ the story for the prosecution was improbable ”•constitutes a very serious misdirection in law..
It might be asked whether the preliminary directions in which theburden of proof had been correctly explained were not so clear as to haveremoved the risk of the jury being confused, if not completely misled, bythe later misdirections. In our opinion, it would be unsafe to assume that-the jury would have paid regard to the general proposition that an accusedperson’s guilt must be proved beyond reasonable doubt when they weresubsequently led to believe, in the particular context of the issue ofidentification, that the applicant must establish on a balance of proba-bility that {for instance) a mishap which allegedly occurred when he was•opening a tin of sardines explained the presence of human blood on his.sarong.
Learned Crown Counsel %'cry fairly conceded that these misdirectionswere of so fundamental a character as to vitiate the verdict, and we weresatisfied that justice required us to quash the conviction upon a groundmot specified in the notice of appeal and we ordered a re-trial.
Let- it be said in conclusion that it is quite proper (and that it is indeedIiis duty) for an Advocate (whether he represents the defence or the Crown)to bring to the notice of this Court any substantial matter which, thoughnot formally raised within the prescribed limit of time, nevertheless merits■consideration in a pending appeal or application. The assistance which•the Court of Criminal Appeal expects in such a situation must, of course,be given with a due sense of responsibility. ’'
. There is one further observation which might usefully be made for the•assistance of the Judge who will preside at tho re-trial of the applicant.
.It relates to the dying declaration alleged to have been made by «JanoNona as to the circumstances resulting in her death.•
When a dying declaration is relied on by the Crown, it is imperative-that the jury should be adequately cautioned as to the weight to be-attached to unsworn statements implicating an accused person who hathno opportunity of cross-examining the declarant. H. v. Asirvadam *.
Tie-trial ordered.