REV. MATHEW PEIRIS v. THE ATTORNEY-GENERAL

016-SLLR-SLLR-1992-2-REV.-MATHEW-PEIRIS-v.-THE-ATTORNEY-GENERAL.pdf


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REV. MATHEW PEIRISv.
THE ATTORNEY-GENERAL
SUPREME COURTKULATUNGA, J.
WADUGODAPITIYA, J. ANDPERERA, J.
S.C. APPEAL 21/88 WITH 11/88
C.A. NO. 126/87
HIGH COURT AT BAR
COLOMBO NO. 766/80
17, 19, JUNE, 23, 24, 29, 30 AND 31 JULY
AND 20, 21 AND 22 AUGUST 1991.
Criminal Law – Murder – Joinder of charges and fair trial – System evidence -Pooling of evidence relating to two alleged murders.
The High Court convicted the appellant of two murders (the deceased beingRussel Ingram and Mrs. Eunice Peiris) on a single indictment on the basis thatthey had been committed in the course of the same transaction. The appellant
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was the 1st accused at the trial and tried along with Dalrene Ingram the 2ndaccused. They were charged on separate counts in the indictment with theoffence of conspiracy to commit the said murders. They were charged with themurder of Russel Ingram (husband of 2nd accused) on the basis of an allegedcommon intention on their part to commit such offence. The 2nd accused wasadditionally charged with the offence of abetting the appellant to commit themurder of the deceased Eunice Peiris.
The trial judges convicted the two accused of all the offences charged againstthem. Both accused appealed against their conviction. The Court of Appeal heldthat whilst the evidence established a very cbse amatory relationship betweenthe accused, it provided sufficient proof of a motive to commit the offence onlyagainst the appellant; that in the absence of a special overt act by the 2ndaccused, the circumstantial evidence was equivocal on the existence of acommon intention on her part, that the evidence is consistent with the 2ndaccused having been an innocent tool in the hands of the appellant; and that theevidence of the 2nd accused's conduct relied upon by the prosecution toestablish that the 2nd accused agreed with the appellant and facilitated thecommission of the offence is consistent with her innocence. In the result thecharge of murder against the 2nd accused based on common intention and thecharges of conspiracy and abetment against her failed. The conviction of theappellant for conspiracy to commit murder was set aside but his conviction andsentence for the murder of Russel Ingram and Mrs. Eunice Peiris were affirmed.He appealed to the Supreme Court
In the case of both deceased persons the High Court Judges held it provedbeyond reasonable doubt that they had suffered permanent brain damage at thetime of their last hospitalisation and that each of them died of pneumonia causedby prolonged unconsciousness resulting from hypoglycaemia (lowering of bloodsugar) induced by anti-diabetic drug.
Held:
The prosecution case was that the incidents complained of were committed inthe course of the same transaction and the evidence was not adduced on thebasis of system evidence. The appellant was not denied a fair trial on account ofprejudice caused by the pooling of evidence led in respect of two murders at thejoint trial of the accused, after the refusal by the trial judges of an application forseparation of trials.
The evidence supported the finding in respect of both the deceased personsthat the cause of irreversible brain damage and unconsciousness leading to
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pneumonia and death was hypoglycaemic induced by drugs and not a naturalcause.
The facts justified as proved beyond reasonable doubt that both deaths were theresult of murders and not accidents or suicide or natural causes. The facts alsojustified as proved beyond reasonable doubt that the murders were committed bythe appellant.
Per Kulatunga, J.
“Where the final decision is reached, as is the case here, on the basis ofantecedent determinations of act on several issues, a court of final appealshould be slow to interfere with the findings of the trial court.”
APPEAL from judgment of the Court of Appeal.
R. I. Obeysekera, P.C. with Anil Obeysekera, A. W. Uysuf, Jayantha Wee'rasinghe,Upali Senaratne, Champani Padmasekera, Ramya Chandra Gunasekera, DeepalWijeratne and D. Akurugoda for appellant.
Tilak Marapane, P.C., Solicitor-General with C. R. de Silva, D.S.G. for Attorney-
General.
Cur. adv. vult.
3rd February, 1992.
KULATUNGA, J.
The accused-appellant (hereinafter called the appellant) hasappealed to this Court from the judgment of the Court of Appealwhereby that Court affirmed the conviction and sentence imposed onhim by the High Court at Bar by three Judges without a Jury forcommitting the murder of two persons. One indictment waspresented in respect of these offences on the basis that they hadbeen committed in the course of the same transaction.
The appellant was the 1st accused at the trial and he was indictedwith the murders of Russel Ingram and Mrs. Eunice Peiris and wastried along with Dalrene Ingram the 2nd accused who was the wife ofthe deceased Russel Ingram. The deceased Eunice Peiris was thewife of the appellant. The two accused were also charged on
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separate counts in the indictment with the offence of conspiracy tocommit the said murders. They were charged with the murder ofRussel Ingram on the basis of an alleged common intention on theirpart to commit such offence. The 2nd accused was additionallycharged with the offence of abetting the appellant to commit themurder of the deceased Eunice Peiris.
The trial Judges convicted the two accused on all the offencescharged against them. Both accused appealed against theirconviction. The Court of Appeal held that whilst the evidenceestablished a very close amatory relationship between the accused,it provided sufficient proof of a motive to commit the offence onlyagainst the appellant; that in the absence of a special overt act bythe 2nd accused, the circumstantial evidence was equivocal on theexistence of a common intention on her part, that the evidence isconsistent with the 2nd accused having been an innocent tool in thehands of the appellant; and that the evidence of the 2nd accused’sconduct relied upon by the prosecution to establish that the 2ndaccused agreed with the appellant and facilitated the commission ofthe offence is consistent with her innocence. In the result, the chargeof murder against the 2nd accused based on common intention andthe charges of conspiracy and abetment against her failed. Her,conviction on those charges was set aside and she was acquitted onall counts, allowing her appeal. The conviction of the appellant forconspiracy to commit murder was set aside and he was acquittedallowing his appeal in respect of that charge. His conviction andsentence for the murder of Russel Ingram and Mrs. Eunice Peiriswere affirmed and his appeal was dismissed in that regard.
The appellant Rev. Mathew Peiris ordained in England in 1950s is aPriest of the Church of Sri Lanka, belonging to the Anglican ChristianFellowship. At the relevant time he was the Vicar of Saint Paul’sChurch Colombo. His wife Mrs. Eunice Peiris who was about 59 yearsold at the time of her death lived with him in the Vicarage. They hadthree grown-up children; two of them, a daughter and one son (Mihiriand Munilal) both married and were resident in England with theirspouses; the unmarried daughter Malrani was also resident inEngland. All of them were employed there. Russel Ingram and his wifeDalrene were regular visitors to the Vicarage from 1976. The appellant
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was known as an exorcist and conducted exorcism ceremonies at hisChurch on Thursdays which the Ingrams attended. At this time Russelhas lost his job. Dairene who was a typist was also unemployed. Theyhad three small children. The appellant employed Dairene as hisSecretary and later found employment for Russel at Lake House.
The appellant and his wife went on a world tour on 06.02.78 leavingRussel and his wife in charge of the Vicarage. On 25.04.78 theappellant returned alone. On 09.06.78 Russel who had been inexcellent health suddenly took ill. The appellant gave him some pillssaying that they had been prescribed by Dr. Weerasena. Russelbecame drowsy and suffered bouts of unconsciousness and wasadmitted to hospital only on 26.06.78 in an unconscious state; herecovered with the administration of dextrose and was discharged on
He was again admitted to the hospital in an unconsciousstate on 18.07.78 and died without recovering on 10.08.78.
Mrs. Eunice Peiris returned from abroad on 06.12.78. Shethereafter became slow in speech, drowsy and lethargic. Theappellant showed her to Dr. Weerasena who prescribed a mild anti-depressant. On 15.01.79 she collapsed and was admitted toDurdans Hospital. She was treated for mild depression and wasdischarged having made an almost complete recovery. The appellantkept on giving her pills saying that they were prescribed byDr. Weerasena. She was once again admitted to hospital on 31.01.79in an unconscious state and remained in that state until her death on
19.03.79.
In the case of both the deceased persons the High Court Judgesheld it proved beyond reasonable doubt that they had sufferedpermanent brain damage at the time of their last hospitalisation andthat each of them died of pneumonia caused by prolongedunconsciousness resulting from hypoglycaemia (lowering of bloodsugar) induced by an anti-diabetic drug.
The appellant obtained leave to appeal from the Court of Appealon the ground that the joinder of charges in respect of two murders inthe same indictment and the pooling of evidence relating to these
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charges had caused grave prejudice to him. It was submitted thatalthough the prosecution said that it was not relying on systemevidence it in effect got the benefit of system evidence by pooling theevidence relating to the two murders. The prejudice caused by thisprocedure deprived the appellant of an acquittal on the strength ofthe medical evidence relied upon by the defence. It was the defenceposition that at the lowest such evidence created a reasonable doubtas to whether the irreversible brain damage and unconsciousnessleading to the death of each deceased was drug induced or causedby a natural illness.
The charges in respect of two murders have been joined on thebasis that, prima facie, the incidents complained of were committedin the course of the same transaction. However at thecommencement of the Trial-at-Bar the defence objected to theindictment, particularly to the joinder of charges and applied for aseparation of trials. The trial Judges refused the application. Theaccused made an application by way of revision to the Court ofAppeal to canvass that order. The question whether the High Courthad exercised its discretion correctly whether prejudice would becaused to the accused by the joinder of charges and whether theseparation of trials would hamper the prosecution from effectivelypresenting its case were all considered by the Court of Appeal afterwhich the accused's application was dismissed. Thereafter the trialwas proceeded with and ended in the conviction of the accused.
In the appeal against their conviction, Counsel for the accusedappellants sought to reagitate the question of separation of trials onthe basis that the order made by the Court of Appeal in revision is anullity in that the Bench that heard the matter consisted of three andnot five Judges as required by the law as it then stood. The Court ofAppeal held that the composition of not less than five Judges of theCourt of Appeal under S.451(2) of the Code of Criminal ProcedureAct is applicable only to appeals from a High Court at Bar and not toany applications in revision from 'orders’ made by such Court; that inany event the order of the Court of Appeal had not been challengedby any application to the Supreme Court and hence declined tointerfere with that order made by a parallel Court.
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Even assuming that the point regarding the composition of theCourt of Appeal Bench is arguable, I am inclined to the view that it isessentially a matter of procedure, the non-compliance of which doesnot make the order a nullity; if, therefore, the order was not canvassedin an appeal therefrom to this Court, it would not be competent for theappellant to canvass it in an appeal from the final verdict at the trial.When this position was indicated to Mr. R. I. Obeysekera, P.C., learnedCounsel for the appellant, he submitted to us that it would still becompetent for this Court to consider whether by reason of prejudice tothe appellant caused by the pooling of evidence led in respect of twomurders, the appellant has been deprived of a fair trial and if so to setaside the verdict entered against the appellant. The complaint soformulated does not involve a review of the decision refusing aseparation of trials and can be considered by this Court. Indeed, if infact the appellant was deprived of a fair trial in the way the decisionfor his conviction was reached that would constitute a denial of justice;and this Court must give him relief.
It appears that the learned trial Judges were themselves aware ofthe necessity to ensure a fair trial. They have set out the guidelineson the matter at the commencement of their judgment. They havenoted that the order for a trial-at-Bar before three High Court Judgeswas itself made to avoid substantial injustice which may result byreason of prejudice in the minds of laymen in a case attended bymuch publicity. On the question of system evidence, the Courtobserved that it has been decided in this country that two instancesof similarity do not form a series and said –
"… we are of the view that any similarity appearing on the face ofthe evidence led in support of different charges at this trial shouldnot be used for the purpose of arriving at any finding on any one ofsuch charges. We would proceed to consider the evidence placedbefore us separately on the several counts upon the view that thejoinder of charges is justified, in that, prima facie, the incidentscomplained of were committed in the course of the sametransaction."
The learned Judges also said that the media publicity focussedupon the accused since their arrest in 1979 have in no way
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influenced or affected their deliberations and that they would limitthemselves to the evidence led before the Court. The Court furthersaid that they were conscious of the responsibilities attached to theirdual role as Judges of law and Judges of fact namely to first advisethemselves correctly on the applicable law and to ensure a fair trial;and secondly, to emerge as reasonable men, who have the capacityto see room for reasonable doubt, to analyse the evidence, toovercome prejudice and the pressure of publicity. I have to considerwhether despite these guidelines the appellant has in fact beendeprived of a fair trial. This, I shall do by assessing the merits of allthe grounds of appeal and submissions made to this Court.
Besides obtaining leave of the Court below to appeal on thegrounds of law referred to above, the appellant obtained specialleave from this Court to appeal on other grounds on the basis thatthey are fit for review. These grounds are in the main directed tochallenging the findings of the trial Judges based on medicalevidence that the cause of irreversible brain damage andunconsciousness leading to pneumonia and death of each of thedeceased was hypoglycaemia induced by drugs and not a naturalcause. This would require us to review the medical evidence, thoughwithin limits. The grounds urged would also require us to reverse thenumerous findings of fact reached at the trial including those on theidentity of the person who introduced the anti-diabetic drugs in thefeeds brought by the appellant to the hospital as well as to reject thetestimony of several witnesses who have been believed by the trialJudges. Implicit on these grounds is the submission that the Court ofAppeal has erred in failing to reverse the findings of the High Court atBar against the appellant.
The appellant thus calls upon us to discharge the heavyresponsibility of considering whether we should reverse the findingsof fact reached at the trial and affirmed by the Court below. It is to benoted in this connection that the Court below has upon a review ofthe facts, already reversed the verdict against Dalrene Ingram. Thetask of that Court in reaching that decision was not complicated bythe need to consider mixed questions of medical evidence and factbased on the testimony of medical personnel and ordinary witnesses
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which is what we have been requested to do in the case before us.Notwithstanding the difficulties involved in that task I shall endeavourto consider each and every issue raised before us and to express myviews thereon before deciding this appeal.
It is relevant at this stage to note that as stated in the judgment atthe trial that many witnesses testified at the trial which proceededthrough two whole terms and two whole vacation periods. Thejudgment of the learned Trial Judges consists of 606 typed pagesgoing into minute detail, with numerous repetitions or reformulationsof the same matters or issues by way of analysis. What is more, themajor part of the deliberations in respect of each murder comprisesthe consideration of the medical evidence on the question whetherthe deceased’s condition was drug-induced or due to a naturalcause. It was by such a procedure that the Court reached its findingsof fact and the verdict of guilty against the appellant. We can reviewthat decision upon a consideration of the facts only so far as it ishumanly possible and is within our legal competence as the secondCourt of Appeal. Where the final decision is reached, as is the casehere, on the basis of antecedent determinations of fact on severalissues, a Court of final appeal should be slow to interfere with thefindings of the trial Court. With these remarks, I shall proceed to adetailed consideration of the grounds of appeal and the submissionsof Counsel.
THE VERDICT WITH REFERENCE TO RUSSEL INGRAM’S DEATH
In his appeal to this Court the appellant does not canvass thefindings of trial Court that Russel was hospitalised on 18.07.78 in anunconscious state, and that this condition was caused byhypoglycaemia which was also the cause of irreversible braindamage which in turn led to prolonged unconsciousness, pneumoniaand unavoidable death. However the point has been taken and thelearned Counsel for the appellant strenuously submitted, that theprosecution had failed to establish beyond reasonable doubt thathypoglycaemia which was the medical condition that brought aboutthe other conditions that resulted in death was drug-induced; that onthe basis of the evidence of Dr. Dayasiri Fernando it is possible thathypoglycaemia was the result of a natural cause namely the
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existence of insulinomas or secreting tumours in the ectopic sites inRussel’s body, if not in the pancreas itself; and that this possibility hasnot been excluded beyond reasonable doubt, the benefit of whichmust accrue to the appellant. Learned Counsel submitted that thebest evidence of the presence of a drug in Russel's body namely atest of blood or faecal matter for euglucon has not been done, whichalso should create a reasonable doubt in the matter. It appears thatthe submission based on the absence of such a test had beenpressed at the trial only in respect of Mrs. Eunice Peiris. However, thepoint has been urged in respect of Russel as well in the petition ofappeal to this Court and as such it will be considered by us.
A somewhat tenuous ground has also been urged, viz., thatconsequent upon the acquittal of Dalrene Ingram on the charge ofmurder after being indicted with the appellant on the basis of acommon murderous intention, the question now arises as to whichaccused introduced the drug in feeds brought by the appellant to thehospital, assuming that Russel's hypoglycaemia was induced by theadministration of a drug. I shall deal with this point later but it shouldbe noted straight away that neither at the trial nor in the Court belowdoes it appear to have been alleged or suggested that Dalrene wasresponsible for administering any drug to Russel.
The appellant calls upon this Court to rule that the evidence of AlexParker Ingram and Bridget Jackson (which has been accepted at thetrial) regarding the administration of anti-diabetic drugs is unworthy ofcredit on the ground of belatedness, omissions and illwill. As a furtherreason for rejecting their evidence it is urged that the Court of Appealerred in accepting the evidence of these witnesses against theappellant whilst at the same time ignoring the impact and implicationof such evidence when considering the case against Dalrene.
At the time of death Russel Ingram was in his late twenties. He wasa non-diabetic and had been a healthy man. According toMr. Weeraman his superior officer at Lake House where he wasemployed in November 1977, Russel was in good health, acompetent worker and a member of the Social Club and the cricketteam at the place of his employment. The only evidence of a previousillness is that on 08.07.77 Russel had suddenly taken ill and was
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admitted to Durdans Hospital by the appellant with the assistance ofa parishioner by the name of Wanigasekera. According to Dr.Panditharatne, the patient was irrational, disoriented and was unfit togive a history. There does not appear to have been a clear diagnosisof his ailment but he was given Librium to calm him down on theassumption that he had a psychiatric problem.
Russel suffered two bouts of illness, the second of which ended inhis death. During the first episode, he fell ill on 09.06.78 and theappellant administered some pills to him saying that Dr. Weerasenaprescribed them (Dr. Weerasena denies this and says that the lasttime he had treated was in 1976 for some sores). Russel was notadmitted to a hospital and was not given normal food by theappellant who made it known that Dr. Weerasena had advised aregulated diet for him. On the pills being given, Russel sweatedprofusely and collapsed. He appeared to be stuporous orunconscious, off and on; the appellant fed him and finally admittedhim to the General Hospital on 26.06.78 in an unconscious state, witha letter from Dr. P. A. P. Joseph which was issued without seeing thepatient but on symptoms given to him by the appellant. Evidenceregarding Russel's illness and the attention paid to him by theappellant has been given by Alex Ingram, the father of Russel.
Russel was admitted to hospital at 2.30 p.m. and was given a 10%dextrose drip whereupon he regained consciousness by 8.00 p.m.the same night. He was discharged on 14.07.78 without drugs andreported for work the same day. The next day Dr. Joseph who hadvisited the Vicarage found that Russel could not subtract 7 from 100which was a symptom of brain damage. Bridget Jackson (Dalrene’ssister) says that at about 3.30 p.m. on 16.07.78 the appellant gaveRussel some tablets and a capsule with a cup of tea; in 10-15minutes Russel collapsed sweating and passed urine in bed. Heremained unconscious and was admitted to the General Hospital on
by the appellant who was accompanied by Russel Jackson(Bridget’s husband) and Dalrene.
The prosecution led the evidence of several medical officersincluding experts who have specialised in particular fields many of
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whom had treated Russel during his illness. They are, Dr. Joseph,FRCP (England) former senior Surgeon, General Hospital; Dr. Mrs.Anula Wijesundera, MBBS, MD. MRCP; Dr. Wijesiriwardena, Dr.Sheriffdeen, General Consultant and Surgeon, General Hospital,Teacher in Surgery, University; Dr. Nagaratnam, MBBS, MD, MRCP,Senior Physician, General Hospital, Dr. Mrs. Balasubramaniam,MBBS, PHD in Pathology, London University, Professor of Pathology,Faculty of Medicine, Colombo University; Professor Jayasena,Professor of Pharmacology, Peradeniya University; Dr.Ruwanpathirana and Dr. Banagala. Dr. Dayasiri Fernando, SpecialistSurgeon, a relation of the appellant was called to give evidence as tothe conduct of the appellant. The defence cross-examined him andelicited evidence relevant to its case.
The learned High Court Judges subjected the evidence on eachissue to meticulous examination. Where necessary they tested thecogency of medical evidence in the light of other evidence. Wherethe evidence was challenged on the ground of delay or omissions orillwill the Court also scrutinised such evidence intrinsically, applyingthe test of probability, to consider whether the facts spoken to areestablished beyond reasonable doubt. Adopting this approach theCourt made its findings which I shall presently summarise; but beforeI do so I wish to consider the point regarding the want of scientificproof of the presence of euglucon in Russel's system.
Henry, Assistant Government Analyst called by the defence saidthat anti-diabetic drugs can be identified in urine up to 2 days, fromthe date of administration; in faeces up to 5 days and in blood up to 3days if a test had been done. However, the doctors at the GeneralHospital were not aware of this test which was known to theGovernment Analyst; in any event conducting such a test was not astep which was vital for the treatment of Russel but a step which thepolice might have taken in the investigation of the crime.Investigations commenced only after Mrs. Peiris's death and theconsequent arousal of suspicion against the appellant by which timea test on Russel was out of the question. The High Court wastherefore, left with other available evidence on the basis of which ithad to make its findings.
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MATTERS HELD BY THE HIGH COURT TO HAVE BEEN
ESTABLISHED BEYOND A REASONABLE DOUBT:
That on 26.06.78 Russel was admitted to Ward No. 44 of theGeneral Hospital in an unconscious state. This is based on theevidence of Alex Ingram, the history given by the appellant thatRussel had been unconscious for 20 hours (recorded in the BedHead ticket P18) and the medical evidence.
(a) That on 18.07.78 Russel had been admitted to Ward No. 18 of
the General Hospital in an unconscious state. This is basedon the statement of the appellant to Dr. Sheriffdeen in hisclinic when the appellant told him that Russel had beenunconscious for one day, the testimony of Jacksons and theentries of Dr. Wijesiriwardena in the BHT P19 at RIGH 31(b).
That at the time of the said admission to the hospital Russel’sblood sugar was zero consistently with his having beenunconscious for a day prior to admission; this is supported bythe evidence of Dr. Wijesiriwardena, nurse Manawadu,laboratory technician Oliver Fernando and the blood sugarreport RIGH 54(a).
That at the time of the said admission to the hospital Russelhad suffered irreversible brain damage; this led to hisinevitable death following upon prolonged unconsciousnessand pneumonia despite the treatment and attention providedto him. He was given normal food through a nasal tube i.e.nutrition such as soups, milk, eggs, fruit juice, Marmite andwater with saline drip and 5% to 50% dextrose infusionwhenever required. All this merely helped to keep himclinically alive. This is supported by the testimony ofDr. Nagaratnam.
That the appellant brought foods in liquid form which was given toRussel in the hospital whereupon he suffered hypoglycaemicattacks. This is supported by the evidence of the nurses,Dr. Wijesiriwardena and Dr. Banagala, the BHT and the FluidBalance Chart. In this respect the Court considered certain
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omissions and contradictions in the evidence of the nurses andheld that they did not affect the evidence of the nurses as againstthe appellant.
That the cause of Russel’s unconsciousness during both episodesof his illness was hypoglycaemia. Evidence regarding hiscondition on 26.06.78 has been given by Dr. Anula Wijesundera,Dr. Joseph and Dr. Nagaratnam. They have given reasons for theirrespective opinions. Dr. Nagaratnam who is a diabetes Specialistof 30 years standing eliminated other possible cause of a comaaccording to his knowledge and experience and in the light of thefact that Russel was a well-built young man with no injury or feverin his unconscious condition. The fact that he recovered upondextrose and saline administration within 5 hours is also given asa reason for the opinion that the cause of his coma washypoglycaemia.
As regards Russel’s condition on 18.07.78, the trial Judges haveexamined the evidence of Dr. Sheriffdeen and Dr. Nagaratnam. Theiropinion is that Russel’s unconsciousness was caused byhypoglycaemia. Dr. Sheriffdeen held a pathological post-mortemexamination on Russel’s body and carried out an extensiveexamination of his liver, kidneys, adrenal glands, hypothalmous andpituitary glands all of which were normal with no tumors. He alsoexamined Russel’s brain with the assistance of Dr. WickremasingheNeuropathologist for any cerebral cause of unconsciousness andfound it to be a perfectly normal brain. All this confirmed his clinicaldiagnosis that Russel’s unconsciousness was caused byhypoglycaemia or the lowering of blood sugar in his system. Thiswould deprive the brain cells of an essential nutrient leading to braindamage.
That Russel's hypoglycaemia was not caused by any endogenoussystem disorder or a natural disease; that in particular there wereno insulinomas in Russel’s system either in the pancreas or inectopic areas where pancreatic tissues may be found. Thisfinding was reached after considering the evidence of Dr. Joseph,Dr. Anula Wijesundera, Professor Jayasena and especially the
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opinions of Dr. Mrs. Balasubramaniam, Dr. Dayasiri Fernando andDr. Nagaratnam and in the light of all the facts and circumstancesof the case. In this connection, the Court explains the relevance ofcorrect blood sugar levels in the body. According to medicalopinion, when food is consumed glucose enters the liver which inturn releases sufficient quantities of glucose into the blood stream.When the blood enters the pancreas, beeta cells secrete insulin,maintaining normal sugar/insulin level. The normal blood sugarlevel is usually 60 to 100 mg.% subject, however, to some upwardvariation in these terminals going up to 80 to 120 mg.%, thegradation varying with the lab. If due to excess insulin the bloodsugar level drops below 40 or 30 mg.%, the medical condition ofhypoglycaemia and unconsciousness would occur.
The medical experts considered all the possible natural orendogenous causes of hypoglycaemia in Russel which are asfollows:-
Malfunction of endocrine or ductless glands, secreting pituitaryglands, adrenal glands, thyroid glands.
Liver and kidney disease and hypoglycaemia caused by the toxiceffect of acute alcoholism.
“Hungry tumours”; these are non-pancreatic tumours of the liver,abdomen, chest cavity or lungs.
Reactive hypoglycaemia i.e. lowering of blood sugar below 50mg.% or 40% occasioned by a reaction to sugar.
Spontaneous hypoglycaemia –
diseases of the pancreas called hyperplasia adenamatosis,nesidioblastosis. These are insulin secreting diseases.
Insulinoma or Islet Cell Tumour; such tumours may be found inthe pancreas or its ectopic areas, namely, duodenum,stomach and small bowel.
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On the basis of clinical and pathological examination the medicalexperts eliminated without dissent the causes referred to at 1, 2, 3, 4and 5(a) above. However, a difference of opinion arose in respect ofthe cause referred to at 5(b) above.
INSULINOMA OF THE PANCREAS OR ITS ECTOPIC AREAS
All the medical experts expressed the opinion that insulinoma is avery very rare condition. The defence relied on the testimony of Dr.Dayasiri Fernando who was called by the prosecution to speak to theconduct of the appellant. Testifying under cross-examination he saidthat:
an insulinoma can be seen;
it may be occult (hidden); the smallest insulinoma recorded being0.5 mm;
secreting tumours can have periods of remission;
the amount of secretion does not depend on size; a small tumourcan secrete a lot of insulin;
there can be several secreting tumours;
the rate of secretion can be moody but with time as it progresses,the rate increases;
tumours can be in ectopic areas.
Dr. Sheriffdeen had a pathological post-mortem done on Russel’spancreas and a nodule taken from the duodenum. He cut thepancreas to thin slices and found no abnormality or a tumour and hesent these and the nodule for a histology. Dr. Mrs. Balasubramaniamconducted the histological examination microscopically and found noinsulinoma, no tumour or other disease. The nodule was found to bea harmless lymph node.
Dr. Sheriffdeen examined the ectopic sites and found noinsulinoma and no signs of ectopic tissues i.e. pancreatic tissues inplaces where they should not normally be found. To surmount all thedextrose Russel was given and to show the condition ofhypoglycaemia, Russel would have had to have a large secretingtumour visible to the naked eye. He did not send the ectopic parts forhistology because in that event he had to send all parts, which is
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particularly impossible. He examined microscopically and took onlythe suspected portions; there were no suspicious areas except thenodule in the duodenum. The defence contended that insulinomacould be hidden; there could be multiple secreting tumours; and thatin the absence of a histology Dr. Sheriffdeen could have misseddeeply situated significantly secreting multiple tumours capable ofproducing insulin to cause Russel’s hypoglycaemia.
Dr. Nagaratnam was of opinion that in the absence of some otherdisorder it must be a large virulent insulinoma or several of them,even smaller ones, that could have secreted a large amount of insulinto overpower the dextrose infusion which Russel was receiving. Healso said that once insulinoma manifests, it tends to become veryaggressive.
The High Court formed the view that insulinoma was possible butthe medical picture and the behaviour pattern of Russel was againstit. Among the reasons given for this view are the following:-
There were 4 attacks of hypoglycaemia between 9th and 26thJune 1978 during which he was unconscious or stuporous.
He recovered after dextrose infusion on the 26th after which therewere no attacks.
A glucose tolerance test on 3rd July showed his blood sugar levelto be normal; and he was discharged on 14th July.
On 15.07.78 Dr. Joseph saw him at the Vicarage unsteady, drowsyand could not work a simple arithmetic sum, indicating braindamage.
On 18.07.78 he was deeply unconscious with zero blood sugarand on admission he had irreversible brain damage; but with 50%dextrose infusion his blood sugar rose to 265 mg%, which wasthree times the normal level.
On 19.07.78 his blood sugar picked up with 2 infusions of 5%dextrose and remained at 162 mg% (well above normal).
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On 20.07.78 he received infusions of 5% dextrose and normaldiet; blood sugar was 165 mg%.
Between 26.07.78 and 03.08.78 he had hypoglycaemic attacks,despite 50% dextrose. Attacks repeated to 26th, 27th, 28th, 29thJuly and 3rd August. From 4th August attacks subsidied; he diedon 10th August.
The Court observed that tumours once established, progressivelybecome aggressive and do not change their behaviour for the better.Russel's condition cannot be explained adverting to remission andsecretion; they are not symptoms of tumours which increasesecretions progressively. The Court, therefore, concluded thatRussel's pancreas was functioning normally and that he had noinsulinoma.
The High Court accepted Dr. Sheriffdeen's testimony that it is notpossible to microscopically examine every bit of abdominal organ inthe search for pancreatic tissue in ectopic areas; it held that a doctoris entitled to look for suspicious areas of tissue and select such tissuefor histology. In considering the adequacy of what was done, theCourt observed that one might approach the question from a humanstandpoint and not from the standpoint of the laws of mathematics.
The Court observed that Dr. Sheriffdeen and Dr. Nagaratnamtreated Russel and were involved with his illness; Dr. DayasiriFernando had never seen or treated Russel; he only heard of signsand symptoms from the appellant and gave evidence from medicaljournals. Finally, the Court said that the point is whether the facts andcircumstances were sufficient to draw the inference safely andaccepted Dr. Sheriffdeen's evidence that it was highly improbablethat there were pancreatic tissues in ectopic areas; the Court alsoobserved that the known behaviour and pattern of Russel’shypoglycaemia attacks make insulinoma manifestly improbable; theCourt concluded that taking everything into account there was noinsulinoma in Russel's system and that this fact has been establishedbeyond a reasonable doubt.
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It is clear that the above finding was reached on the basis of themedical evidence relied upon by the prosecution especially thetestimony of Dr. Sheriffdeen which the Court was able to accept andact upon as expert evidence as against Dr. Dayasiri Fernando'sevidence which was more in the realm of theory than expert opinionin relation to the case before the Court. That finding is justified. Theevidence which eliminates a tumour in the pancreas is, in my view,beyond impeachment and has not been seriously challenged beforeus. As regards the suggestion of insulinoma in ectopic areas,microscopic examination of every bit of abdominal organ beingimpossible, the Court was right in considering the evidence ofDr. Sheriffdeen without devaluing it for lack of such examination andreaching the finding it did in the light of the entire evidence in thecase. In this respect, the Court was entitled to take into account, interalia, the testimony of the Ingrams and the Jacksons regarding themedical history of Russel and the history given to the doctors by theappellant. I now return to the enumeration of the findings made bythe High Court.
6. That Russel’s death is homicide by some person or persons –
After eliminating natural causes of hypoglycaemia the Courtconsidered the question whether it was caused by some unnaturalcause (exogenous hypoglycaemia). The Court found that it was notself-administration for Russel was not a diabetic; so there was noquestion of his having taken an overdose of anti-diabetic drugs. Itwas also not suicide particularly in view of intermittent hypoglycaemicattacks even during unconsciousness. It was also not an accident,particularly as it could not have repeated itself in June and Julycausing hypoglycaemia and unconsciousness.
In considering whether Russel’s death was homicide, the Courtconsidered the expert evidence given by Prof. Jayasena and Dr.Nagaratnam on the subject of diabetes. They have explained thatdiabetes occurs when beta cells of the pancreas cease to producesufficient insulin; the result is high blood sugar which can be
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controlled either by the injection of insulin directly into the bloodstream or by giving anti-diabetic drugs such as diabenese oreuglucon, the effect of which is to activate the functioning of betacells to secrete insulin. Even if there are no functioning beta cells ithelps the utilisation of glucose by other body cells.
The Court also accepted as proved beyond a reasonable doubtthat the food brought by the appellant and given to Russel in hospitalhad a blood sugar reducing agent which caused attacks ofhypoglycaemia between 26th July and 4th August 1978. Prof.Jayasena and Dr. Nagaratnam stated that an anti-diabetic drug canbe crushed and put into liquid and passed down the nasal tube.
That the appellant is guilty of the murder of Russel.
In reaching its verdict the Court regarded (a) motive (b)opportunity (c) knowledge of drugs (d) possession of drugs asrelevant. There was also evidence of conduct on the part of theappellant which showed that he contemplated Russel's death and yetsought to deceive the unsuspecting believer in his claimed spiritualpowers that Russel was afflicted with a pancreatic disorder. He alsosought to mislead the doctors and prevent them giving Russelappropriate treatment. The following items of evidence relied upon bythe Court are significant:—
According to Cora Ingram (Russel's mother) on 18.04.78 Russel’swedding anniversary was celebrated at the Vicarage; he was in goodhealth. Munilal says that the appellant who was at his daughter'shouse on holiday about that time in England went into a trance duringwhich he said that the angel had told him that Russel was ill. Dr.Dayasiri Fernando speaks to the appellant meeting him in April orearly May and giving the description of a lodger who lostconsciousness associated with changes of blood sugar, a classiccase of insulinoma. Dr. Fernando advised the appellant to admit himto a medical ward at the General Hospital. Chandrasiri Dharmadasa,
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a lodger who left the Vicarage on 26.05.78 says that Russel was ingood health at that time.
On 09.06.78 the day Russel fell ill, he told Alex Ingram “I cansleep, sleep and sleep”. The appellant said “no man, he is havingsome pancreatic disorder, an operation has to be done, there is noother treatment". On 10.06.78 the day Russel collapsed on beinggiven pills by the appellant, the appellant went into a trance and said"pancreas, pancreas". The Court examined the evidence of Munilaland Malrani regarding the appellant’s claim to a connection with thesupernatural and a diary entry kept by Alex Ingram and acceptedtheir evidence as to the trance. Alex Ingram says that after Russel’sadmission to the hospital on 26.06.78, the appellant tried to preventthe nurses giving dextrose to Russel on the doctor’s instructions. Thisis corroborated by Dr. Mrs. Ruwanpathirana who says that theappellant said “sugar is poison"; further when Cora Ingram tried togive custard pudding to Russel, the appellant objected, becausecustard contains sugar, though Cora Ingram did not realise thatcustard contains sugar.
Bridget Jackson says that on 16.07.78 the appellant gave lunch toRussel and also ice cream after lunch. The appellant said thatRussel’s condition was very low and he might pass away at any timeand discussed funeral arrangements i.e. in which grave he should beinterred. Notwithstanding this condition, Russel was not admitted to ahospital promptly; the appellant said “Doctor is gone; I will get himadmitted to hospital on the clinic day”. He was admitted only on18.07.78. On 10.08.78 after Russel’s death the appellant placed aring on Dalrene’s finger and said “Don’t worry Dalrene, soon I will bein the same position as you".
I have already referred to the evidence that during both episodesof illness, the appellant was administering pills to Russel. Witnessesdescribed the medicine as pills or tablets or capsules. The tabletswere green or white. Some tablets resembled Disprin. The appellant
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represented to Alex Ingram that Dr. Weerasena and Dr. Joseph weretreating Russel between 9th and 26th June, 78. This claim wasreagitated before us by Mr. Obeysekera, PC., both doctors havestrenuously denied that they treated Russel during this period. Thereis nothing to indicate that this is a false denial. Thus if they treated apatient who was so seriously ill, there is no evidence as to whatmedicine was prescribed or where it was purchased. A point is madeon the evidence of Alex that Dr. Joseph had visited the Vicarage on20th June but Dr. Joseph is sure that his visit was on 15th July afterRussel's discharge from Durdans Hospital. Mr. Marapana, PC..Solicitor-General submits that Alex had made a mistake as to thedate. After a careful consideration of the testimony the Court hasbelieved the witnesses and accepted their evidence referred toabove, giving adequate reasons for such acceptance. The Court hasconsidered the testimony of witnesses which has been challenged forbelatedness, omissions, contradictions or animosity; whether they bedoctors or laymen witnesses. Before accepting their testimony theCourt has, were appropriate, tested the evidence intrinsically in thelight of all the facts and circumstances and found corroboration. Theirstatements are belated because investigations were commencedonly after suspicion arose on account of Mrs. Peiris's illness. In thisappeal we have been called upon to reject the evidence which hasbeen so accepted especially the evidence of Alex Ingram andBridget Jackson on the same grounds urged at the trial. Sitting as aCourt of second appeal we are unable to accede to this request.
The appellant was a diabetic and Dr. Weerasena had prescribed5 mg. euglucon a day. The Manager of Osu Sala said that from 1977the appellant used to buy euglucon once in three weeks. Munilal saysthat in April 1978 when the appellant was in the U.K. he purchased100 tablets of euglucon. According to the Managing Partner, NewCity Chemists the appellant bought drugs on account. On 12.07.78he bought 50 tablets of 5 mg. euglucon. He had a book containinginformation regarding the sugar in blood, the pancreas, secretion ofinsulin etc. (P40). The evidence of Dr. Dayasiri Fernando and Dr.Joseph shows that the appellant knew much about hypoglycaemia.
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Russel was living in the Vicarage and this gave the appellant theopportunity to administer drugs to Russel. Whenever the appellantgave pills to Russel he became unconscious. Taking all this evidenceinto consideration the High Court found the appellant guilty ofmurder.
EVIDENCE OF ALEX INGRAM, BRIDGET JACKSON AND THEMEDICAL EVIDENCE
On behalf of the appellant it was submitted that the credibility ofthese witnesses is affected by the medical evidence. It wassubmitted that if as Alex Ingram says Russel was unconsciousbetween 24th and 26th June, according to medical evidence, hewould have suffered irreversible brain damage and would not haverecovered. Russel’s blood sugar was 43 mg% at admission and herecovered the same day. As far as Bridget Jackson is concerned,Russel should have died before admission to hospital on 18.07.78.The submission here is that during each episode of his illnessRussel's unconsciousness was not as prolonged as the witnessesmake out as a basis for the alleged neglect of Russel by theappellant; and as such the implication in their testimony that theappellant administered anti-diabetic drugs to Russel is weakened.This submission is sought to be strengthened with reference to theentries on 18.07.78 in the BHT. Thus it is urged that the fact that Dr.Karunakaran made entries at 1.30 p.m. ordering saline and dextroseand blood and urine tests (RIGH 32), that the requisition for tests wasmade at 1.30 pm. (RIGH 54) and that the test report (RIGH 54(a))which records zero blood sugar was made in the afternoon show thatRussel who was admitted to the hospital at 9.00 a.m. that day(RIGH 31(b)) had not been attended to until the afternoon; and thatthe zero level blood sugar represents his condition in the afternoonand not at admission as believed by the High Court. LearnedPresident's Counsel contended that in this state of the evidence itcannot be ruled out that Russel's blood sugar level would have beenhigher at his admission to the hospital.
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Dr. Karunakaran had gone abroad and during the trial and hencedid not testify. However, Dr. Wijesiriwardena has explained thathaving treated him during his previous hospitalisation he knew Russeland hence on the morning of 18.07.78 he would have ordered bloodand urine tests and also ordered saline and dextrose infusion but hadforgotten to make entries. Nurse Manawadu supports him and saysthat she drew blood immediately and administered saline anddextrose. She kept the blood sample in the refrigerator and sent it forexamination in the afternoon having obtained the requisition fromDr. Karunakaran. In fact, several instructions given byDr. Wijesiriwardena including the instructions to maintain the FluidBalance Chart and to continue the administration of fluids slowly arefound in RIGH 33 which is page 3 in the B.H.T. Dr. Wijesiriwardenasays that he gave those instructions on a loose sheet of paper before1.30 p.m. and it had probably got unstuck and was not available toDr. Karunakaran when he reported in the afternoon and henceDr. Karunakaran had also ordered saline and dextrose infusion andurine tests upon reading the entries in RIGH 31 only. Later RIGH 33had been found and appended. It is the position ofDr. Wijesiriwardena that his entries at RIGH 33 were made beforeDr. Karunakaran's entries at RIGH 32.
The High Court has accepted the above explanation and held thatRussel had not been neglected and that the report RIGH 54(a)records the patient's blood sugar level at his admission to thehospital. The Court observed that in fact the patient survived till 1.30p.m. because of medical help; and that this is also confirmed by hisslight recovery at 10.00 p.m. the same day. The Court also relied onthe history given by the appellant that Russel had been unconsciousfor 20 hours at the time of his admission to the hospital on 26.06.78and for one day at the time of his admission on 18.07.78; thiscorroborates the testimony of Alex Ingram and Bridget Jackson. It isalso observed that while Russel was in the Vicarage he was beinggiven pills and food by the appellant until shortly prior to eachhospitalisation. This shows that Russel’s unconsciousness was notacute throughout in medical terms but that he was probably dazed
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and lying motionless in bed, a condition which lay witnesses woulddescribe as unconscious. However, shortly prior to eachhospitalisation, Russel was deeply unconscious, a condition whichcould have occurred if a heavy dose of anti-diabetic drugs was givento him shortly prior to such hospitalisation. Viewed in that light itcannot be said that the testimony of Alex Ingram and BridgetJackson that Russel was unconscious at the Vicarage is incredible.
The High Court also explained that according to medical experts,even if insulin makes the patient unconscious or stuporous,compensatory body mechanisms, secretions of pituitary and adrenalglands, breakdown of glycogen stored in the liver and musclesconverted back into glucose can keep the patient alive for sometime.
In the result, I see nothing in the medical evidence which woulddiscredit the testimony of Alex Ingram and Bridget Jackson whichevidence has been accepted by the High Court.
GROUNDS OF APPEAL CONSEQUENT UPON THE ACQUITTAL OFDALRENE INGRAM BY THE COURT OF APPEAL
It is urged by the defence that the Court of Appeal erred on threematters:-
by accepting the evidence of Alex Ingram and BridgetJackson against the appellant whilst ignoring the impact andimplication of their evidence against Dalrene Ingram;
by failing to consider a doubt which arises upon Dalrene'sacquittal as to which of the accused introduced anti-diabeticdrugs in feeds brought by the appellant to the hospital; and
by regarding the amatory association between the appellantand Dalrene as a sufficient motive against the appellant for
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murdering Russel whilst it did not constitute such a motiveagainst Dalrene.
As regards the first point, it is not based on the premise that theCourt of Appeal has rejected the evidence of Alex and Bridget. Thesubstance of the complaint is that the Court below has found theirevidence insufficient to convict Dalrene but accepted it against theappellant. Whether this approach is inconsistent would depend onthe content of the entire evidence they gave against Dalrene. Shewas acquitted on the ground that in the absence of evidence of anovert act connecting her with the crime, each of the items ofevidence led against her through these two witnesses is equivocaland hence she could not be convicted unlike the appellant againstwhom there was evidence of positive acts pointing to his guilt. Someof the items of evidence relied upon against Dalrene are:-
that she permitted the appellant to treat Russel when he wasgravely ill and unconscious or failed to remove him from theVicarage;
discussing the place of Russel’s burial with the appellant whenRussel was alive;
informing relatives that Russel was being looked after andgiven medication by the appellant, and
the appellant placing a ring on her finger on the day ofRussel's death.
The Court said that these acts are explainable on the basis thatDalrene trusted the appellant and no irresistible inference of guilt ispossible based on such evidence. In regard to the evidence aboutthe ring, the Court thought that in the absence of a positive act on herpart it was not safe to act on Bridget’s evidence withoutcorroboration. There is nothing in this approach which can enure tothe benefit of the appellant. Dalrene’s case was viewed differentlybecause there is no evidence of any positive act by her. The Court
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thought that as was the case of Russel, Alex, Cora and others whounsuspectingly trusted the appellant, Dalrene too would have trustedhim and the various acts and omissions alleged against her areexplainable on the basis that she was probably an innocent tool inthe hands of the appellant. The Court of Appeal cannot be faulted fortaking this view.
As regards the second point, there is no evidence that Dalreneadministered any drug to Russel; nor does it appear that it is evennow suggested that she gave him pills. Instead a doubt is sought tobe created as to which accused introduced anti-diabetic drugs in thefeeds brought to the hospital by the appellant. If the suggestion isthat Dalrene introduced drugs to the food at the Vicarage it is nodoubt a possibility in the sense that nothing is impossible but in thelight of the available evidence it cannot be said that there is areasonable doubt as to who administered anti-diabetic drugs toRussel. In this respect, it should also be borne in mind that at thetime of his admission to hospital on 18.07.78, Russel had sufferedirreversible brain damage on account of tablets given by theappellant during the afternoon of the 16th and Russel was in a comawhich led to his death by pneumonia. If so, the lethal dose of drugshad already been given by the appellant before Russel’shospitalisation. What was introduced in feeds was not the cause ofthe condition that led to his death; and even if it accelerated thedeath, the feeds were given by the appellant; and it would be fancifulto suggest that Dalrene introduced drugs to the food without theknowledge of the appellant in such circumstances as would requirethe appellant to be acquitted. There is thus no merit in the secondpoint raised by the defence.
The point with reference to motive is untenable. All that the Courtof Appeal said was that in the absence of an overt act, the amatoryassociation between the accused was insufficient proof of a motivefor the crime as against Dalrene. They regarded it as a sufficientmotive in respect of the appellant against whom there is evidence ofpositive acts. I see no error in this finding.
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In the result, I hold that the Court of Appeal has not committed anyerror as averred in the petition of appeal. Adverting to the complaintthat the appellant has been denied a fair trial on the ground ofprejudice arising by reason of the pooling of evidence, I am of theview that in the light of the evidence which I have analysed above, itcannot be said that any such prejudice has occurred. I have myselfconsidered the charge of murder against the appellant with referenceto Russel’s death independently of the case against him on the othercharge of murder of Mrs. Eunice Peiris. I find that it is possible todecide the two charges separately. I am unable to agree with thesubmission that the appellant has been denied a fair trial on accountof prejudice caused by the pooling of evidence.
I am of the opinion that the conviction of the appellant for themurder of Russel Ingram is in accordance with the law and theweight of the evidence led. I hold that there is no merit in any of thegrounds adduced against the judgment of the Court of Appealdismissing the appellant’s appeal on count 2 of the indictment andaccordingly affirm the said judgment.
VERDICT WITH REFERENCE TO MRS. EUNICE PEIRIS’S DEATH
The High Court at Bar found that Mrs. Peiris had been admitted tohospital by the appellant on 31.01.79 in an unconscious state withirreversible brain damage and despite treatment died of pneumoniacaused by prolonged unconsciousness; and that the cause of herunconsciousness was hypoglycaemia induced by the administrationof anti-diabetic drugs. The Court found the appellant guilty of murder,under count 4 of the indictment, the motive being the closeassociation between the appellant and Dalrene Ingram. The Courtrejected the defence, based on the evidence of Dr. Abeysuriya, thatMrs. Peiris's condition was caused by a depressive illness whichoccasioned a fall of blood pressure and diminution of oxygen supplyto the brain associated with reactive hypoglycaemia resulting in adrop of blood sugar. It is common ground that the immediate cause
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of Mrs. Peiris’s death was pneumonia of both lungs and pulmonaryoedema resulting from prolonged unconsciousness due to braindamage. However, the appellant contends that the defence positionat least raises a reasonable doubt in the prosecution case as to thecause of brain damage to the deceased, particularly in view of thefact that there is no affirmative specific proof of the presence of anti-diabetic drugs in her system. It is the case for the appellant that Dr.Abeysuriya is a disinterested expert witness whose evidence the trialCourt could not have totally rejected for the reasons adduced bythat Court for such rejection and that the Court of Appeal erred inupholding the conviction of the appellant for the murder ofMrs. Eunice Peiris.
Mrs. Peiris returned to the country from England on 06.12.78.Rev. Edison Mendis (her brother) and his wife Mrs. Myrtle Mendis hadseen her. She was happy and cheerful on 07.12.78, attended theThursday Church Service as usual and was normal. Malrani speaksto an incident on 06.12.78 when the appellant went into a trance andtold them that the angel said that Mrs. Peiris had a stomach ailmentand should be shown to Dr. Weerasena. To an inquiry by theappellant, Mrs. Peiris said that she had no pain. The appellantshowed her to Dr. Weerasena around 10.12.78, and gave a history ofthe illness on the basis of which Dr. Weerasena prescribed stalacene(for anxiety) and maxolen (for puffiness of stomach). The appellantalso obtained for himself declinex (for high blood pressure, a drug toreduce blood pressure). These drugs he purchased on 11.12.78(X13B).
After a lengthy consideration of many other matters to which I shallpresently advert, the High Court took the view that Mrs. Peiris had nocause for anxiety but that the appellant was confusing her with hisstatements based on supernatural powers of which the Court cannottake cognizance; the Court has to decide issues upon evidenceconcerning things of this world as against matters which depend onfaith. In any event, there was no evidence that the appellant indeedhad such powers, the defence suggestion being that Malrani had
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been put up by the Mendises to falsely testify against her own father.Therefore, the Court can only decide whether the appellant in factclaimed supernatural powers and uttered the words attributed to him.On this basis the Court believed Malrani’s evidence regarding thetrance and the conduct of the appellant.
The next phase namely, the period subsequent to the treatment byDr. Weerasena and up to 15.01.79 is covered by the testimony ofMalrani, Rev. & Mrs. Mendis and Eardly Mendis. The deceased wasless cheerful after 07.12.78. She said that she was feeling dizzy, dulland drowsy; she deteriorated around Christmas. On 29.12.78 after aparty at the Vicarage, the appellant had gone into a trance and toldthe deceased that this was going to be her last party, upon which shestarted crying. The deceased did not attend the new year's eve familylunch at Rev. Mendis’s house on 31.12.78. She did not go to theAirport to see Malrani off on 02.01.79. Malrani says that the appellantused to give pills to the deceased and after taking them she used tosleep and sleep. The appellant told Dr. E. V. Peiris (on 24.01.79) thaton the 17th and 29th July 78 the deceased had collapsed. On
the deceased wrote a letter to her children in Wales (2D1);that letter does not indicate that she was having any mental illness;but in it she explained that she did not know what was wrong with her.
The High Court makes the point that although the appellant rushedMrs. Peiris to Dr. Weerasena soon after her return to the Country, theappellant did not summon a doctor when she was ill the whole ofDecember after the consultation on 10.12.78 and up to 15.01.79when she was found unconscious. This resulted in her firsthospitalisation.
DECEASED’S FIRST HOSPITALISATION AT DURDANS HOSPITAL
On 15.01.79 Dr. Weerasena visited the Vicarage on beingsummoned by the appellant and found the deceased unconsciouswith an unrecordable blood pressure; her pulse could not be felt.
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Dr. Weerasena dispatched her to Durdans Hospital. The appellantgave the history as follows:-
“Treated for acute depression – artaine and stalacene – wasdrowsy since yesterday" (P10). So, when he admitted her to thehospital the appellant did not inform that she had collapsed at theVicarage.
Dr. Weerasena had phoned Durdans Hospital at the time thedeceased was sent there and given instructions to administer 10% ofdextrose (to elevate blood sugar) and methasole (to elevate bloodpressure). This treatment was promptly given whereupon the patientrecovered; she was then drowsy but her blood pressure picked up to150/90. At that stage Dr. Mrs. Panditharatne had seen the deceased.
Thereafter Dr. Sathanandan who had seen the deceased was notaware that she had been brought unconscious and acting on thehistory given by the appellant, diagnosed endogenous reactivedepression and gave her a mild dose of Tofranil. He equated thedepression to a condition resulting from a family bereavement, failingan examination or a broken love affair. Sathanandan admitted that ifthe deceased had been unconscious and regained consciousness, itwas consistent with a physical and not a mental cause. Thereaftershe did not suffer lack of oxygen to the brain or brain damage; sherecovered almost fully and was discharged on 20.01.79.
GLASS HOUSE TEST ON MRS. PEIRIS
After her discharge from Durdans, Dr. Weerasena wanted Mrs.Peiris to be shown to Dr. E. V. Peiris. This was done on 24.01.79. Dr.Peiris gave a letter (P22) for an Extended Glucose Tolerance Test.Thereafter the appellant met Dr. Weerasena and without showing himP22 told him about the test ordered by Dr. Peiris and got anotherletter from Dr. Weerasena (P11). The appellant booked an ordinarytest at the Glass House over the phone for 29.01.79, took Mrs. Peiris
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to the Lab and started the test without showing P22 or P11 (thesewere later found in the Vicarage by the police). After one hour theappellant told the Lab Technician (Harridge) that he had given a callto Dr. Weerasena who wanted an extended G7T. The bill was alteredaccordingly; an extra Rs. 40/- was charged; and the test was done.
The appellant brought Mrs. Peiris from the verandah each time ablood sample was drawn, and did all the talking whilst she appearedweak and sick. The appellant knew a lot about the GTT and showedHarridge 2 blood reports during the test. The defence position wasthat the appellant made a mistake when he ordered an ordinary testand corrected himself when he realised his mistake. Dr. Weerasenadenied giving instructions to the appellant over the phone. Afterconsidering the testimony very carefully the Court held that theappellant's conduct was deliberate. The result of the test so obtainedis in document P24 and shows that the fasting blood sugar was73mg% and despite the administration of 50cc glucose blood sugarfell down to 65mg%, 51mg% and 50mg% at each stage of the lastthree 1/2 hourly tests i.e. below fasting level showing reactivehypoglycaemia. The prosecution led this evidence to show that theappellant manipulated the test to indicate a false endogenousspontaneous reactive hypoglycaemia for the purpose of obtaining aletter from Dr. Weerasena to mislead the hospital at the finalhospitalisation of the deceased.
FINAL HOSPITALISATION OF MRS. PEIRIS
On 30.01.79 Mrs. Peiris had been well and sitting up; she had hermeals and saw Rev. & Mrs. Mendis off at 7.30 p.m. Dr. Weerasenasaw her at the Vicarage that evening and found her drowsy; (theappellant did not show him the result of the GTT (P24). On 31.01.79the appellant telephoned Rev. Mendis, Dr. Weerasena and Dr. Peiris.He told Rev.. Mendis that he was hospitalising Mrs. Peiris; she wassleeping and there was no hurry and asked Rev. Mendis to collect aletter from Dr. Weerasena. Rev. Mendis collected the letter (P13) andvisited the vicarage and found Mrs. Peiris unconscious.
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P13 issued for admitting Mrs. Peiris to the hospital states –
“4 hour GTT shows that there is hypoglycaemia after 4(3) hours
and she also says that she feels giddy when she takes sugar".
This history was given by the appellant to Dr. Weerasena over thephone after reading figures from the GTT; the fact that the appellantmade such a phone call is also borne out by Dr. Peiris, (to whom alsothe appellant rattled off GTT figures over the phone) Myrtle Mendis,Eardly Mendis and Rev. Mendis who collected P13 fromDr. Weerasena at about 10.30 a.m. The High Court correctly held thatthe statement that “she feels giddy” is not a dying depositionattributable to Mrs. Peiris because Dr. Weerasena said that he wroteP13 on what the appellant told him.
At the admission to hospital Dr. Rajah Silva recorded in BHT P21 atEPGH 10C "history from the husband Rev. Father Mathew Peiris -thirst, loss of appetite, later she felt giddy 2 to 3 hours after meals”; atEPGH 11 “The patient had been given glucose at a GTT and shebecame very drowsy after the test”; EPGH 11A “Having fluctuatinglevels of unconsciousness (drowsy to deep coma) from about 6.00p.m. the previous day …”; EPGH 11B “yesterday she had slurring ofspeech, she took some sugar, but she became very drowsyaccording to her husband.
CONDITION OF MRS. PEIRIS ON ADMISSION AND TREATMENT
On admission she had suffered irreversible brain damage and wasunconscious. At 12.15 p.m. blood pressure was 100/60 (just belownormal) BHT P24 at EPGH 9; blood sugar was 30mg%. At 12.30 p.m.Dr. Silva saw her; the pressure had dropped to 60/40, EPGH 16B. Onseeing the figures in the Glass House GTT a photocopy of which theappellant produced on admission, Dr. Silva inquired whether thedeceased had taken anti-diabetic drugs. The appellant said she wasnot a diabetic and had not taken anti-diabetic drugs. At 1.00 p.m. thepatient was still unconscious, EPGH 14A. The appellant said the
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patient’s blood sugar falls more when glucose is given, EPGH 14B.He also gave a history of depression and treatment with Tofranil,EPGH 10C. Even after dextrose infusion the patient did not recoverand Dr. Silva informed the appellant that the patient had sufferedpermanent brain damage and was unlikely to recover. At 2.45 p.m.the appellant again advised the doctor not to give dextrose to thepatient, EPGH 15B.
Notwithstanding the appellant’s objections the patient was givendextrose. By 11.00 p.m. her blood sugar rose to 247mg% (abovenormal) pressure was 70/40 (still below normal) at 12.30 a.m. on
a blood transfusion was started and at 4.30 a.m. the patientresponded to painful stimuli. At 3.30 p.m. blood pressure was 100/60(near normal) at 10.45 p.m. blood sugar was 82mg% (within normallevel). These levels remained until her death. While all this washappening Dr. Wickremasinghe, Senior House Officer made an entry“suspected poison – inform police – hypoglycaemia agent -attempted suicide/homicide”, EPGH 18A. The police wereaccordingly informed.
Mrs. Peiris was given antibiotics and 50% dextrose until 07.02.79.She was then switched over to normal food through nasal tube; shewas also given oral dextrose; but she had suffered irreversible braindamage and hence never recovered consciousness. She died on
19.03.79.
CAUSE OF MRS. PEIRIS'S PERMANENT BRAIN DAMAGE ANDUNCONSCIOUSNESS
(a) PROSECUTION VERSION
On this matter, the prosecution led the evidence of Dr. Rajah Silva,Dr. Subramaniam, MBBS, MRCP, AJMO who did the Judicial Post-
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mortem and the autopsy on all organs and Dr. Naganathan, MBBS,MD, MRCP, FRCP Consultant Physician.
Dr. de Silva said that his tentative diagnosis of Mrs. Peiris’spermanent brain damage and unconsciousness was –
hypoglycaemia or
cerebro-vascular accident (stroke).
He excluded diabetic coma, uremic coma (kidney disease), hepaticcoma, meningitis and encephalitis; endocrinal dysfunctions; headinjuries, infectious disease; all poisons except anti-diabetic drugs.The cause of the coma was also not anti-depressant drugs for Dr.Sathanandan prescribed a mild dose of Tofranil which could notresult in unconsciousness; it was not suicide for by 20.01.79 she hadalmost fully recovered at Durdans from her first illness. Dr.Subramaniam at the Judicial Post-mortem confirmed this diagnosis.He found no infection of the brain, no sign of stroke, no heartdisease, organic disease or poison. The medical evidence for theprosecution concludes that the cause of Mrs. Peiris’sunconsciousness was hypoglycaemia.
(b) DEFENCE VERSION
The defence called Dr. Abeysuriya, MBBS, FRCS, SeniorConsultant Neurosurgeon, General Hospital. We were told at thehearing of this appeal that this doctor had been listed as a witness inthe indictment but was not called by the prosecution; and that thedefence called him. On 03.02.79 he had examined the patient at therequest of the Physician in charge of the ward. Having found that thepatient was in a semi-comatose condition Dr. Abeysuriya made anentry in the BHT "Her comatose state appears due to Anoxiaconsequent to a sustained hypotension about 72 hours ago". He
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went through the BHT and the history recorded there as provided bythe appellant and gave his opinion.
It would seem that the cause of coma contemplated by his entry issevere depression but later Dr. Abeysuriya modified this and saideven moderate depression can bring about unconsciousness.Accordingly, the High Court raised the issue for decision i.e. whetheracute or moderate depression could result in stress leading tosuppression of the hypothalmus pituitary glands giving rise to a fall inblood pressure and reactive hypoglycaemia causing a fall in bloodsugar.
HOW DEPRESSION LEADS TO BRAIN DAMAGE
Suppression of the hypothalmus gland complex arrests the releaseof cortisol and causes lack of cortisol in blood which helps to boostblood pressure. Blood pressure drops leading to insufficient oxygenreaching brain cells; if this occurs sufficiently long, it would causepermanent brain damage. Suppression of the hypothalmus wouldalso retard the pituitary gland function of releasing glucose into theblood, in which event blood sugar (an essential nutrient to the braincells) is affected.
ASSESSMENT OF DR. ABEYSURIYA’S OPINION
The Trial Judges correctly guided themselves with the statementthat if the defence position at least created a reasonable doubt theaccused would be entitled to an acquittal and proceeded to evaluatethe opinion in great detail analysing and testing the data relied uponby Dr. Abeysuriya.
The learned Judges observed that Dr. Abeysuriya was the onlydoctor who gave this opinion and the other doctors were notspecifically cross-examined on it. While that remark is relevant, I willnot consider it to be a matter which would cause prejudice to the
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defence since their task is very light namely, to create a reasonabledoubt in the prosecution version. On the basis of what has been setout above, I think that the trial Judges themselves were aware of this.
As to his knowledge as a Neurosurgeon to speak out on thesubject under reference, Dr. Abeysuriya told the Court that Surgeonsrequired a knowledge of diabetics and other associated conditionsand also sugar metabolism which is controlled by the hypothalmuspituitary glands. The Court observed that Dr. Abeysuriya did notsupport his opinion with any medical book or publication. Undercross-examination he referred to a document. This document was notproduced and marked by the defence and so the prosecutionmarked it P49. He said that he was guided by this document, andthat Mrs. Peiris’s case was a rare condition and that he has had noprevious experience of this condition.
BASIS OF OR. ABEYSURIYA’S OPINION
As a factual basis for the opinion that Mrs. Peiris suffered from adepressive illness the defence relied on the following material:-
A letter written by Mrs. Peiris to the appellant (1D1) and letterswritten by Malrani to the appellant (1D2 – 1D6) before Mrs. Peirisreturned to the country some of which allege ill-treatment byMihiri, her daughter with whom she was staying in Wales. In 1D1Mrs. Peiris says “I have been heavily tortured by Mihiri. I amdisturbed”. In her letters Malrani informs as follows:
“Mum does not know when she is to come back. Staying withthem is awful. Mum says she can’t come back alone" 1D4;
“Mum is being ill-treated by Akki; she is in tears all the time;akki pouncing on mum at every turn; she hates mum; doesnot even see to her food; mum did not sleep; akki told her togo to the doctor” 1D3;
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“Mum is upset, I don't show it in case she gets depressed"1D2.
The failure of a marriage proposal for Malrani with a personnamed Raj in Colombo at about this time regarding which Malranishowed much interest, as evidenced by her letters 1D5 and 1D6;
The presence of Dalrene Ingram in the Vicarage which she usedto visit even though by the time Mrs. Peiris returned to the countryshe had been settled elsewhere in an annex by the appellant;
As was submitted to us at the hearing by Mr. Obeysekera, PC,Mrs. Peiris had been telling the Mendises about the middle ofJanuary 79 that she was depressed and felt lonely after herchildren left. Two of them namely Mihiri and Malrani had come toSri Lanka and stayed in the Vicarage with their parents.
The defence also relied on the following medical data in respect of
Mrs. Peiris which I have referred to in detail earlier in this judgment:-
10.12.78 treatment by Dr. Weerasena for anxiety.
15.01.79 drop in her blood pressure and treatment at DurdansHospital by Dr. Sathanandan.
29.01.79 P24 GTT at Glass House, said to be proof of reactivehypoglycaemia.
P13 Dr. Weerasena’s letter of admission to the hospital on
also said to be proof of reactive hypoglycaemia.
BHT entries on Mrs. Peiris carrying the history of her illness andin particular the drop in blood pressure at 12.30 p.m. on 31.01.79to 60/40.
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Mr. Obeysekera, PC. placed great reliance on the fact that unlikein the case of Russel whose blood pressure was not affected,Mrs. Peiris suffered a severe drop in her blood pressure duringher illness and submitted that this is evidence of a depressiveillness or at least it must raise a reasonable doubt in the prosecutioncase.
THE OPINION OF THE HIGH COURT AT BAR
In order to facilitate the appreciation of the treatment of this subjectby the High Court, I have earlier in this judgment set out all the eventswhich occurred from the time Mrs. Peiris returned to the country untilher death along with some of the comments or conclusions of the trialJudges, where appropriate. I shall now examine the severalconclusions of the Judges on the basis of which they totally rejectedDr. Abeysuriya’s opinion.
P49
It is an article presented by one B. J. Corell in 1969 and publishedin the British Medical Journal at P49. It concerns an experiment doneon 16 severely depressed patients in Australia selected from mentalinstitutions to measure the cortisol level in blood (normal level beingbetween 5-25%).
in the depressed state after inducing hypoglycaemia by loweringthe blood sugar level below 45mg% by insulin injection;
in the recovered state months later, the recovery being done byelectric shock.
BLOOD SUGAR LEVEL
Before insulin injection, the fasting blood sugar level ofpatients was 85mg%. After insulin administration, it was seen thatin 12 patients blood sugar level fell below 30mg% or 45mg%. In
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others, it did not fall below 45mg%. After recovery the fasting bloodsugar level was 78mg%, giving rise to the observation that in thedepressed state the fasting blood sugar level is higher than onrecovery.
CORTISOL LEVEL
In 60% of the severely depressed patients with inducedhypoglycaemia, cortisol level remained normal indicating that therewould be no fall in blood pressure. Only in 4 patients (25%) thecriteria was satisfied and the cortisol level was low.
The learned Solicitor-General in his written submission commentsthat P49 does not support Dr. Abeysuriya’s theory and on thecontrary establishes that patients withstand hypoglycaemic attacks intheir depressed state better than in their recovered state; and furtherthat Dr. Abeysuriya admitted in evidence that he had never comeacross nor read of a case where patients became unconscious fromcauses attributed solely to depression, a condition which he wascompelled to admit, Mrs. Peiris had.
COURT’S ASSESSMENT OF DR. ABEYSURIYA’S OPINION BASEDON P49
P49 is an experiment on severely depressed mental patients inconditions of induced hypoglycaemia by injection of insulin; it isnot even authority for proposition that severe depression causesspontaneous reactive hypoglycaemia; at least it shows that veryrarely such patients can have a low cortisol level and bloodpressure collapse.
In any event according to Dr. Sathanandan, Mrs. Peiris was notseverely depressed; she was given a mild drug Tofranil atDurdans and recovered in 4 days. Hence P49 has no applicationto her.
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P49 cannot be used to support Dr. Abeysuriya’s modified opinionthat severe to moderate depression causes reactivehypoglycaemia. His view that even moderate depression canaffect hypothalmus activity is also not supported by P49 and isspeculation or conjecture on his part.
The defence pointed out to table 9:3 page 202 of Marks andRose on Hypoglycaemia where depressive psychosis is shownalong with several other diseases to co-exist with reactivehypoglycaemia. This does not mean that reactive hypoglycaemiais caused by depressive psychosis.
Dr. Abeysuriya’s opinion on Mrs. Peiris is unsupported by hisexperience or by any medical textbook or publication and henceit is not an expert opinion, and is therefore irrelevant. The Courtaccepted the opinion of the medical experts called by theprosecution that the cause of reactive hypoglycaemia isunknown.
I am in agreement with these conclusions.
P24 GLASS HOUSE TEST RELIED ON BY DR. ABEYSURIYA
I have previously set out the details of this test. Dr. Abeysuriya saidon P24 alone he could say that Mrs. Peiris had reactivehypoglycaemia provided that the necessary preconditions aresatisfied. He rejected EPGH 124 EGTT done on her at the hospital on
which shows a normal curve (fasting level 81mg% and after5 hours, 81mg% and not going below this, at any stage) EPGH 124negatives reactive hypoglycaemia. The reason for rejecting it wasthat 7 hours before the test the patient had been given Horlicks. Buthe relies on P24 regarding which there is no evidence whether pre-conditions are satisfied. It was done at a private lab having no labcontrol. Once blood is drawn the patient is sent to the verandah. Thetest was booked by the appellant who is supposed to have receivedinstructions regarding fasting. In the circumstances, the Courtthought that Dr. Abeysuria's evidence is contradictory.
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The prosecution led evidence of P24 to prove deliberatemanipulation of the test by the appellant. Having held that the variousacts on his part in relation to P24 were deliberate, the Courtconcluded that considering the lack of evidence as to satisfaction ofpreconditions and the conduct of the appellant, the possibility ofmanipulating the blood sugar is ever present; the conduct of theappellant is dishonest, secretive, unreliable and hence P24 cannotrepresent a true, uninduced, spontaneous fall in blood sugar.Dr. Nagaratnam said that a fall in blood sugar can be induced;Dr. Abeysuriya admits that this is possible: P24 is unreliable to basean opinion and hence the medical opinion expressed byDr. Abeysuriya relying on P24 is unreliable and is of no value.
The Court has indeed used very strong language which appearson first blush to place an unwarranted burden on the accused. Hadthis matter rested on P24 alone, it might constitute a misdirection;but this is not so, for the evaluation of P24 has to be in thecontext of the entire case which is bristling with items of guiltyconduct on the part of the appellant. Viewed in that light, I see noobjection to the rejection of P24 as being unreliable in forming thebasis for the expert medical opinion of the magnitude attempted byDr. Abeysuriya.
P13 LETTER OF ADMISSION; P21 BHT EPGH 10C EPGH 11B RELIEDUPON BY DR. ABEYSURIYA
As appears in the facts set out earlier, Dr. Weerasena issued P13solely on the history given over the phone by the appellant. Thehistory given to Dr. de Silva and recorded in the BHT is also what theappellant told that doctor. The appellant has tutored all thesedocuments to make it appear that Mrs. Peiris had reactivehypoglycaemia. On 31.01.79 he told Rev. Mendis that Mrs. Peiris wassleeping when she had in fact collapsed. He told Dr. Silva a half-truthif not a falsehood when he said that Mrs. Peiris had fluctuating levels
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of unconsciousness from 6.00 p.m. on 20.01.79. She was onlydrowsy and saw Rev. & Mrs. Mendis off at about 7.30 p.m. When theappellant phoned Dr. Weerasena on 31.01.79 he did not inform thatMrs. Peiris was unconscious.
The High Court Judges-accepted that P13 and the BHT entriescontain what the appellant said and not the observations of doctors.The Court also held that the history given in P13 is false andconcluded that the history so provided is unreliable and unsafe to beacted upon to express an expert medical opinion. The Courtconcluded that Dr. Abeysuriya’s opinion that Mrs. Peiris suffered froman uninduced reactive hypoglycaemia is irrelevant. I am inagreement with this conclusion.
WAS MRS. PEIRIS MODERATELY DEPRESSED? WAS HERDEPRESSION DUE TO A MENTAL OR PHYSICAL CAUSE?
The High Court at Bar considered this question before finallyrejecting Dr. Abeysuriya’s opinion. The Judges observed that thisdoctor who expressed the opinion that Mrs. Peiris was probablymoderately depressed on 31.01.79 had never seen her before thatday. He only inferred it from the history available to him. The Courtthen analysed the evidence.
Mrs. Peiris was a teacher and a retired school Principal whoenjoyed good health throughout. She was well and happy until shewent on the world tour on 04.02.78. The defence relied on the letters1D1-1D6 written whilst she was in the U.K. with Mihiri and on thefailure of Malrani’s marriage proposal as indicating a cause ofdepression leading to collapse of blood pressure.
The letters undoubtedly disclose a state of acute conflict andharassment suffered by Mrs. Peiris; but Malrani says that they werecommonplace incidents in a family which were quickly forgotten; and
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that her mother was not mentally depressed. In considering thisevidence the Court observed that Mihiri, Malrani and Munilal were allin the U.K., employed, a matter of pride for the deceased; and that inDecember 1978 Mihiri came to Sri Lanka and stayed in the Vicarage.On 04.01.79 the deceased wrote a letter (2D1) to her children inWales which does not indicate any mental illness. The Courtaccepted Malrani’s evidence. I would add, another item of evidenceindicating that the deceased was not mentally depressed on accountof her problems with Mihiri but had forgotten them. That is in themiddle of January '79 she had told Mendises that she wasdepressed; and that after her children had gone she was lonely. Thisevidence was relied upon by Mr. Obeysekera, PC., to support theopinion that she was mentally depressed. The children referred to areMihiri and Malrani and the evidence shows that the deceased wasvery much attached to them; so if she was depressed it was not dueto any grudge against Mihiri.
As regards the failure of the marriage proposal, the Court pointedout that it was a proposal brought by the appellant and that afterconsideration Malrani and Mrs. Peiris had rejected it. As such, it wasnot a cause of mental depression.
The Court held that the presence of Dalrene in the Vicaragewas not a cause of irritation to Mrs. Peiris. Thus in 2D1 shesays “fortunately Dalrene looks after the marketing”. The Courtfound an explanation for this disposition in the representationwhich the appellant had made t& Mrs. Peiris (which she hadaccepted) that the angel had asked him to look after Dalrene and herfamily.
The findings of the High Court is that on her return to the countryMrs. Peiris had no cause for anxiety but it was the appellant whoconfused her with his statements on claimed supernatural powers;that at Durdans Hospital her blood pressure picked up to 150/90 ondextrose infusion and she recovered in 4 days; that the appellant
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gave to Durdans a false history of acute depression withoutdisclosing that she had blackouts; and that on the basis of thathistory Dr. Sathanandan was misled into diagnosing endogenousreactive depression.
The Court also referred to the evidence of Dr. J. G. C. Peiris whosaid that the appellant had requested him to issue a letter thatMrs. Peiris was a depressed hypochondriac, prone to treatingherself with drugs. Dr. Peiris said that he knew her to be a perfectlynormal person in all the years he knew her and declined to give sucha letter.
The Court noted that on 31.01.79 too on admission Mrs. Peiris'sblood pressure was 100/60 which was near normal. No doubt itdropped to 60/40 but it picked up with dextrose infusion and at 3.30a.m. on 01.02.79 it was again 100/60 whilst sugar was 82mg%(normal) and remained so until her death.
The Court held that the cause of Mrs. Peiris's depression was aphysical and not a mental cause; and hence Dr. Abeysuria’s opinionwas unreliable and irrelevant as expert testimony and rejected it. I amin agreement with this finding.
CAUSE OF IRREVERSIBLE BRAIN DAMAGE ANDUNCONSCIOUSNESS – HYPOGLYCAEMIA
After rejecting Dr. Abeysuriya's opinion the trial Court confirmedthe prosecution version that the cause of irreversible brain damageand unconsciousness which led to the deceased's pneumonia anddeath was hypoglycaemia and that her condition was not attributableto any organic illness. Here the Court referred to medical evidencewhich has a bearing on the phenomenon of Mrs. Peiris suffering adrop in her blood sugar. The evidence is that hypoglycaemia of about12 hours could affect vesomotor centres of the brain which causes
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blood pressure to drop when blood flow and oxygen to the brain isreduced causing shock. Hypoglycaemia begins when the sugardrops to 50mg%-40mg% depending on the age and condition of theperson; and prolonged hypoglycaemia causes permanent braindamage.
Considering the entirety of the evidence, I do not think that the factthat (unlike in the case of Russel) Mrs. Peiris suffered a drop in bloodpressure during her illness is vital in determining the cause of braindamage to Mrs. Peiris. As the Court observed the drop in her bloodpressure on 31.01.79 was a sudden drop between 12.15 p.m. and12.30 p.m. which cannot be attributed to a mental cause as she wasunconscious at that time. On dextrose infusion, she regained the nearnormal blood pressure level which she had at the time of admissionand retained it until death.
CAUSE OF HYPOGLYCAEMIA
Having previously eliminated all natural causes of hypoglycaemia,the Court proceeded to hold that the cause was an outside agencysuch as euglucon. As regards the absence of scientific evidence of ablood test for the presence of anti-diabetic drugs in Mrs. Peiris’ssystem, the Court observed that the doctors were not aware of such atest which was known to the Government Analyst and that in anyevent it was a matter for the police, to whom the doctors hadconveyed their suspicion. No such test had been done but theprosecution had placed sufficient material to draw the inference thatthere was in fact anti-diabetic drugs present in the deceased’s body.
HOMICIDE
The Court ruled out both suicide and accident, particularly in viewof the fact that Mrs. Peiris had become unconscious on 15.01.79 andagain on 31.01.79 which would make suicide or accident highly
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improbable. The Court held that the prosecution had proved beyondreasonable doubt that Mrs. Peiris was murdered as a result of theadministration of an anti-diabetic drug and that her death amounts tohomicide. I am of the view that this finding is warranted by theevidence.
CASE AGAINST THE APPELLANT
The Court held that it was the appellant and no one else whoadministered the drug. This finding was supported by the followingmaterial:
The appellant was a diabetic and Dr. Weerasena had prescribedeuglucon for him in 1976. He knew much about hypoglycaemiaand blood sugar levels. This is the evidence of Dr. DayasiriFernando, Dr. Joseph and Dr. E. V. Peiris whom he had consultedabout blood sugar. He also had with him the book P40 entitled“Body, Mind and Sugar”. Between 22.09.78 and 11.12.78 he hadpurchased 80 tablets of 5mg euglucon.
The evidence of Malrani that in December she saw the appellantgiving pills to the deceased; and on consuming them she gotdrowsy. At the Durdans Hospital the deceased had told MyrtleMendis that she did not know whether she was too weak to takeall these drugs. Myrtle Mendis then asked the appellant why thedeceased should take all these drugs. The appellant told her theyare on doctor’s orders. The Court accepted the evidence of thesewitnesses.
Whenever the appellant gave pills the deceased became drowsy.This shows that instead of the anti-depressant drugs given forraising her mood, the appellant was giving her anti-diabeticdrugs.
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Even after the consultation with Dr. Weerasena the deceasedcontinued to be ill. She collapsed twice in December but theappellant did not have her treated until her admission to Durdanson 15.01.79. He was going into trances and making statementsin order to psychologically condition the deceased’s mind intoaccepting that she was ill and unlikely to recover.
The appellant misled the Durdans Hospital by failing to discloseher bouts of unconsciousness; instead he gave a history ofdepressive illness. He then obtained P24, a manipulated GTTand P13 the letter of Dr. Weerasena and thereafter misled theGeneral Hospital to the belief that the deceased had reactivehypoglycaemia.
At the hospital the appellant made every endeavour to preventdextrose infusion to the deceased saying that sugar was bad; henext attempted unsuccessfully to obtain a false certificate fromDr. J. G. C. Peiris stating that the deceased was a hypochondriacprone to treating herself with drugs.
The Court then referred to the evidence of Professor Jayasena andDr. Nagaratnam about the drug euglucon which if given to a normalperson would lower the blood sugar causing permanent braindamage and unconsciousness and death. The Court concluded thatthe appellant had developed an association with Dalrene Ingram andhad chosen to murder the deceased by the gradual and systematicadministration of an anti-diabetic drug; and that the prosecution hadproved beyond reasonable doubt that the appellant had murderedhis wife. In the result, the appellant was found guilty of murder oncount 4 of the indictment
ASSESSMENT OF THE CASE FOR THE APPELLANT
I have examined the case for the appellant in considerable detailin deference to the strenuous submissions made by the learnedPresident's Counsel who appeared for the appellant and for thereason that some aspects of the case do not appear to have beenexamined at length by the Court below. Having considered everyissue very carefully, I see no merit in the complaint that the Court ofAppeal erred in confirming the finding of the trial Judges.
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It was submitted to us that the trial Judge erred in their finding inrespect of the extended GTT done at the Glass House, inter alia, inview of the possibility that the receptionist who took the booking forthe test on the phone (and who did not testify at the trial) made amistake in recording the booking as for a normal GTT; if so theadverse inferences made against the appellant for changing the testare unwarranted. I cannot agree. That booking was on the 27th. Butthe evidence of Nimal Soyza another receptionist is that on the 29thwhen the appellant came in, he asked for a GTT ESRH; the witnesswas not shown the letters P11 and P22 which the doctors had issuedspecifying the test; and that some time after the test started, theappellant requested for an extended GTT for four hours. The HighCourt has considered the evidence and reached certain findings offacts and I see no justification to interfere with those findings.
In the earlier part of this judgment, I have considered in detail, allthe other points made on behalf of appellant and agreed with thefindings of the High Court. Those findings have been affirmed by theCourt below. Finally, I have to consider the complaint of the appellantthat he has been denied a fair trial on account of prejudice causedby the pooling of evidence. I hold that as in the case of the convictionunder count 2 of the indictment, here too no such prejudice has beencaused; there is ample evidence to warrant the appellant’s convictionfor the murder of Mrs. Peiris; and the appellant has not been denied a.fair trial on account of prejudice caused by the pooling of evidence!Accordingly, I affirm the judgment of the Court of Appeal in respect drcount 4 of the indictment
CONCLUSION
The judgment of the Court of Appeal dismissing the appeal of theappellant on counts 2 and 4 of the indictment is affirmed and thisappeal is dismissed.
WADUGODAPITIYA, J. I agree.
P. R. P. PERERA, J. -1 agree.
Appeal dismissed.