DAVID SILVA et al , Appellant , and THE KING Respondent

004-NLR-NLR-V-54-DAVID-SILVA-et-al-Appellant-and-THE-KING-Respondent.pdf

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David Silva v. The King
[Court of CkeminaIj Appear]
1951Present Dias S.P.J. (President), Gratiaen J. and
Gunasekara .1.
I>AVID SILVA et al., Appellants, and THE KING,Respondent.
Appeals 25 to 28 with Applications 39 to 42S. C. 9—M. G. Kalutara, 7,083
S umming – up—Circumstances in favour of accused—Duty of Judge to refer to them
Misdirection—When not fatal.
In a trial by jury the defence put forward on behalf of the accused must beput to the jury in the summing-up and must not be excluded from their-consideration.
In reviewing the evidence in the summing-up, it is the duty of the presidingJudge to refer not only to material portions of the evidence on which theaccused relies but also to a material admission made by a prosecution witnesswhich is favourable to the defence.
Where it is very far from “ reasonably probable that the jury would nothave returned the same verdict if properly directed ”, a misdirection as to-the evidence would not vitiate a conviction.
PPEALS. with; applications for leave to appeal, against certainconvictions in a trial before the Supreme Court.
H. V. Perera, K.G., with Christie Fernando, for the first accusedappellant.
C. S. Barr Kumarakulasinghe, with A. S. Vanigasooriyar, for thesecond and third accused appellants.•
M. M. Kumarakulasingham, with J. C. Thurairatnam, for the sixthaccused appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult^
GRATIAEN T.—David Silva v. The King
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May 23, 1951. Gratiaek J.—
These appeals relate to an incident which took place on the afternoonof April 16, 1950, when a bus belonging to the South Western BusCompany was carrying 55 passengers, including 14 children, fromAluthgama to Colombo. The driver of the bus was a man named GeedinSilva. I shall narrate the facts as they occurred, omitting at thisstage any events which may be regarded as controversial. As thebus was proceeding along the public highway according to schedule itapproached a spot very close to the house of the first accused. Geedinwas then compelled to slow down his bus because its passage wasobstructed by a bullock cart which had been left unattended on theroad and because 6 or 7 men were preparing to cause further obstructionat the same spot by dragging a log of wood across the path of anyapproaching vehicle. As the bus slowed down, 2 or 3 of the passengerswithout any provocation assaulted Geedin while he was still at thesteering wheel, causing him an injury on his head. He halted the bus,and at the same time a number of people standing on the road rushedup to the bus. They were armed with clubs and sticks, and it was clearfrom their attitude that their intention was to attack Geedin. Heattempted to escape, but some members of the gang dragged him outof the bus to the side of the road, and, in the words of two medicalofficers who gave evidence at the trial, he was “ badly beaten up ”,sustaining a compound fracture and a number of contusions and laceratedwounds. The bus was also damaged.
Six persons, including the 4 appellants, stood their trial at the ColomboAssizes in connection with this in'cident on the following counts :—
being members of an unlawful assembly the common object of
which was to cause hurt to Geedin Silva and to commit mischief
by damaging the bus ;
rioting ;
the attempted murder of Geedin Silva in prosecution of the common
object of the unlawful assembly ;
committing mischief by causing damage to the bus in prosecution
of the common object.
There were two alternative counts of attempted murder and mischiefsimplieiter but no verdicts were pronounced in respect of them in viewof the findings of the jury on the earlier counts.
The first question for the consideration of the jury was whether ithad been proved that some persons (whoever they might be) had formedthemselves into an unlawful assembly with the common object of com-mitting the offences specified in the first count in' the indictment. Onthis point it seems to us that there could be only one answer. Theundisputed facts of the case lead to the irresistible conclusion that morethan five persons, some of them passengers in the bus and others waitingin preparation on the public highway near the house of the first accused,had in accordance with a pre-arranged plan formed themselves into anunlawful assembly with the common object of assaulting Geedin and
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GR.ATJLAEN JT.—David Silva v. The King
damaging tlie bus m liis charge. The preliminary assault on Geedinin the bus at the time and place of its occurrence, the calculatedobstruction of the passage of the bus, the concerted removal of Geedinfrom the bus, and the subsequent assault on his person while he waslying on the side of the road could not have been merely isolated trans-actions, perfectly synchronized but conceived by separate individualsacting independently and without a common object in contemplation.The commission of the offences specified in the first and second countsin the indictment, and of the other offences in prosecution of the commonobject of the unlawful assembly, have been very clearly established bythe prosecution. The only substantial issues for the consideration ofthe jury related to the alleged complicity of each accused in these offences.
The jury unanimously found the first accused and the second accusedguilty on counts 1, 2 and 4, and on the third count of the lesser offenceof grievous hurt. Similar verdicts, by a majority of 5 to 2, were pro-nounced against the third and sixth accused. The fourth and fifthaccused were unanimously acquitted on all counts. The first, second,third and sixth accused have appealed against their convictions andsentences.
It will be convenient if we first dispose of the appeals of the third andsixth accused. The case against each of them, as well as against thefourth and fifth accused who were acquitted, rested solely on the evidenceof the injured man Geedin and of Piyasena who was the cleaner of thebus. Both these witnesses stated at the trial that the third, fifth andsixth accused were the persons who had taken part in the originalassault on Geedin while he was still in the bus in which they were travellingas passengers, and that the fourth accused was a member of that partof the unlawful assembly which had collected on the road and draggedGeedin out of the bus. By a remarkable coincidence, however, bothGeedin and Piyasena had in their earlier versions before the committingMagistrate reversed the roles attributed to the fourth and fifth accusedrespectively. This serious contradiction was fairly and adequatelyput to the jury in the learned Judge’s charge, and it is more than probablethat their unanimous verdict acquitting the fourth and fifth accusedwas influenced by this circumstance which certainly justified doubtsas to the reliability of the two witnesses when they purported not onlyto identify the fourth and the fifth accused but also to attribute to eachof them particular acts allegedly committed in the course of thetransaction.
The complaint made by learned Counsel on behalf of the third andsixth accused is that their respective defences, and the infirmities inthe evidence of Geedin and Piyasena who alone implicated them, hadnot been put to the jury at all in the summing-up. For instance, Piyasenaadmitted that he had known the third and sixth accused previouslyby name. Nevertheless in his earlier statement which was recorded bya police officer at an investigation held on the day of the incident, hedid not mention either the third accused or the sixth accused as havingtaken any part in the transaction. This was certainly a strong cir-cumstance in favour of the defences of both these accused persons, andin the circumstance^ of the case it was the duty of the presiding Judge
GRATIAEN" J.—David Silva v. The King
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to have directed the Jury’s attention to it specifically. The defence of-each prisoner should have been adequately put to the jury. Not onlywas this not done, but there is, in our opinion, much substance in thecomplaint that the learned Judge went further and in effect excluded thedefence of the third and sixth accused from the jury’s consideration.For instance, the learned Judge said at one stage “ it is clear that the thirdand sixth accused were two of the people who assaulted this man (Oeedin)in the bus ”, and there are at least two other passages in tbe summing-upwhich could reasonably have been construed by the jury as direction tothe effeet that the only issue of fact which they were required to considerin connection with the assault which took place in the bus was whethereither £he fourth accused or the fifth accused was associated with thethird and the sixth accused in that particular incident. Possibly, thelearned Judge intended only to express a strong opinion which he himselfmay have entertained as to the guilt of these two men. But the languageemployed was, to say the least, calculated to give the impression that thejury were themselves precluded from arriving at their own independentdecision on the point. In R. v. Mills x, the Court of Criminal Appeal inEngland held that a conviction for murder must be quashed “ on theground that the defence put forward on behalf of the appellant was notput to the jury in the summing-up, and because a particular sentence(in the summing-up) excluded that defence from their consideration ”.Similarly, in R. v. Raney 2, a conviction was quashed because the Judge,in reviewing the prisoner’s evidence in his summing-up, had omitted torefer to a material portion of the evidence in the summing-up. Thesame principle would, of course, apply when a prisoner relies not on his•own evidence but on a material admission, made by a prosecutionwitness, which was favourable to his defence. For these reasons wethink that there was a grave misdirection resulting in a substantialmiscarriage of justice. It is impossible to say that a reasonable jury,properly directed on the issue of identification, would not have acquittedthe third and sixth accused as well as the fourth and fifth accused. Inarriving at this conclusion, we cannot lose sight of the fact that boththese accused, unlike the other appellants, had been found guilty onmajority verdicts, and that in the case of one of them, a majority verdictacceptable in law was not reached until the jury had retired a secondtime. For these reasons the Court makes order quashing the convictionsof the third and the sixth accused on all counts.
With regard to the appeal of the first accused, quite apart from theevidence of Geedin and Piyasena which seriously implicates him, therewas a strong body of independent evidence, which the jury must bepresumed to have accepted, to support his convictions. The witnessLionel Goonewardene, a store-keeper employed by the Co-operativeDepartment, was a passenger in the bus and it is conceded that he gavea disinterested account of the incidents which he observed. He statesthat when the crowd came up to the halted bus in order to removeGeedin the first accused was standing and shouting “ at the same exit-of the bus as the one through which the assailants caine ”. He admittedly■“ did not see the first accused do anything to anybody or the bus ”, but
1 (1935) 25 C.A.JR. 138.* (1942) 29 G.A.B. 14.
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GRATXAEN J.—David Silva v. The King
“ amongst the crowd he saw the first accused and the crowd shoutingAnother passenger in the bus was Nicholas Silva, the Superintendentof the Government Leather Factory. He had not met the first accusedpreviously hut identified him at an identification parade. He too-testifies to a erowd coming up to the bus “ armed with clubs and ironbars ”, and says that he “ saw the first accused near the bus creating a
sceneand shouting and doing something ”. A third
disinterested witness who was a passenger in the bus at the time of theincident was Edward Jayawardene, an insurance assistant. He “ sawa gang of men coming towards the bus armed with iron bars and sticks.Suddenly people came and surrounded the bus …. and therewas a struggle inside the bus with the driver He too identified thefirst accused at the identification parade, and says that “ the first accusedwas running about shouting near the exit of the bus while the strugglewas continuing inside the bus”. The learned Judge told the jury inthe course of his summing-up that Jayawardene claimed to have seenthe first accused “ in front of the gang ”, and we have observed thatthis statement does appear in the learned Judge’s notes of Jayawardene’sevidence, although no statement in precisely those words has beenrecorded in the transcript of the proceedings. The first accused was inany event entitled to rely on Jayawardene’s admission, which wasspecially brought to the jury’s notice, but he did not intend to conveythe idea that the first accused had taken any part in the actual attackon Geedin. The evidence of Sub-inspector Li y an age, who arrived onthe scene by chance in the company of Inspector Mendis shortly afterGeedin had been attacked on the side of the road, also implicated thefirst accused. He says that on his arrival he saw the first accused“ in the centre of the road away from the bus gesticulating and shoutingout”. His evidence continues that when the police car drove up towardsthe first accused “ he was adopting a threatening attitude. He washolding forth and shouting out abuse ”. Liyanage then observedGeedin lying on the side of the road with bleeding injuries and attendedto him. In the meantime, he says, “ the first accused had run away ”.Finally the evidence of Geedin must be considered. Even if we assumethat his testimony should have been approached with great caution' (as the learned Judge seems to have suggested to the jury) a circumstancewhich lent considerable weight to his testimony against the first accusedwas that, as soon as the police officers went up to the injured man atthe scene, he said to Sub-inspector Liyanage that “ David (i.e., thefirst accused) and his party had assaulted him ”.
Admittedly, then, the first accused was present at the scene wheresome members of an unlawful assembly were lying in wait in order tohold up the bus and assault its driver. He has given no evidence andoffered no explanation of his boisterous behaviour during the transactionexcept to suggest that his conduct was equally consistent with that of“ a peacemaker ”. It seems to us that he has no cause for legitimatecomplaint if the jury rejected this as a fanciful theory, having regardparticularly to the circumstance that he did not choose to deny theallegation that, on the unexpected arrival of the police officers, hevanished from the scene. It must be remembered that, in addition tothe evidence to which I have already referred, the jury had before them
GRATIAEN J.—David Silva v. The King
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Geedin’s unchallenged evidence that there was pending at the time acriminal prosecution against the first accused on a charge of causingdamage to a bus belonging to Geedin’s employers, and the uncontradictedevidence that on the previous day after a quarrel with Geedin, he hadthreatened to “ teach him a lesson ” or words to that effect. In ouropinion there is no substance in the complaint that the verdict againstthe first accused was unreasonable. Nor are we satisfied that there wasany misdirection in the summing-up as to the nature and effect of thewitness Jayawardene’s evidence which implicated him. Such an allegedmisdirection would not in any event have amounted to a misdirectionas to the law, and in accordance with the principles laid down in R. v.CohenV we are content to say that it is very far from “reasonablyprobable that the jury would not have returned the same verdict ifproperly directed ” on the point. We dismiss the appeal of the firstaccused.
We also take the view that there is no merit in the appeal of the secondaccused. The only ground on which he sought to challenge his con-viction was that the verdict against him was unreasonable. He is abrother of the first accused, and he too was admittedly present when theincident occurred. Here again, quite apart from the evidence of Geedinand Piyasena against him, which he did not choose to contradict, hisunexplained conduct, as testified to by Sub-inspector Ldyanage, inrelation to the cart which was obstructing the passage of the bus, mightwell have influenced the jury’s verdict against him. Liyanage says-that he saw the second accused trying to push the cart while anotherman was attempting to prevent him from doing so. Liyanage’simpression of the second accused’s behaviour was that he was trying topush the cart against the bus to make it look as if there had been a-collision between the two vehicles, Liyanage’s un contradicted evidencethat when he “ rushed up ” to the second accused on observing thisincident, the second accused “ ran away ” was a further circumstance-which the jury was entitled to act upon. Indeed, the opinion of thisCourt is that the learned Judge’s charge on this aspect of the case wasunduly favourable to the second accused, and that the jury, as thejudges of fact, were entitled to take a different view of the effect ofLiyanage’s evidence. There was evidence upon which the jury couldreasonably hold that the second accused was identified with the membersof the unlawful assembly and with their common object. We thereforedismiss the appeal of the second accused.
In the result, we affirm the convictions of the first and second accusedand quash the convictions of the third and sixth accused. We refuse theapplications of the first and second accused for leave to appeal againsttheir sentences. Learned Counsel made no submissions to us in supportof these applications, and our own opinion is that the sentences passedon these men erred on the side of leniency.
Convictions of 1st.and 2nd accused affirmed.
Convictions of 3rd and 6th accused quashed.
(1909) 2 C.A..B. 197.