044-NLR-NLR-V-76-H.-S.-PERERA-alias-Mandawala-Appellant-and-THE-QUEEN-Respondent.pdf
Perera v. The Queen
2l7
[Coubt of Cbimxnal Appeal]
1970 Present: H. N. G. Fernando, C.J. (President), Samerawickrame, J.,and Thamotheram, J.
H. S. PERERA (alius Mandawala), Appellant,and THE QUEEN, Respondent
C. C. A. No. 70/70, with Application No. 117
S. G. 792169—M. G. Kalmunai, 393S2
Evidence Ordinance—Statement of a person who is dead—Admissibility—Scope of
■ Section 32 (1)— “ Circumstances which resulted in death "—Whether they caninclude reference to a past incident as evidence of motive.
Summing-up—Judge's expression of his own opinion on guilty intention of
accused—Verdict of guilt returned by Jury—Failure of Jury to derate somereasonable time to consider their verdict—Inference that they yielded to theJudge's dictation.
The accused-appellant was convicted of murder. The fatal assault onthe ^bceased man took place on 0th August 1060. In the statement which hemade to the Magistrate the deceased had mentioned an oarlier incident “ on26th or 27th July ” when he had a quarrel with the accused and had hit him ablqw with a bottle. At the trial the Judge directed the Jury that this state*ment afforded evidence of motive.
Held, that the deceased’s statement was not admissible under taction 32 (1)of the Evidence Ordinance because it was not a statement as to the circum-stances of the transaction which led to the death of the deceased.
In his summing-up the Judge strongly expressed his opinion that,considering the intention with which the accused acted, the case was indeedone of murder. At the same lime he gave a formal direction that the Jurywere entitled to disregard his own emphatic opinion on matters of fact. ThoJury returned their verdict of “ Guilty ” after a consideration lasting less thanten minutes.
Held, that the failure of the Jury to dovoto some reasonable timo to theconsideration of their verdict could fairly indicate that the verdict was reachedat the Judge’s dictation, and not upon the Jury’s own deliberations.
At:
'PEAL against a conviction at a trial before the Supreme Court.
R. 8. R. Coomaraswamy, with K. Jeganathan, T. Joganathan,8. C. B. Walgampaya, P. H. Kurukulasuriya and Miss A. P. Abeyratne(assigned), for the accused-appellant.
N.TittaweUa, Senior Crown Counsel, for the Crown.
LXXVI—10
!•—A 00580—2SOS (8/73)
Cur. adv. mp.
H.'N. G. FER^N AXIJO, C.J.—Per era v. The Queen
M
November 24, 1970. H. Is. G. Pebnaitdo, C.J.—
After hearing the arguments of Counsel in this case we set aside theverdict of murder and the sentence of death passed against the appellantand substituted therefor a verdict of culpable homicide not amounting tomurder and a sentence of 10 years, rigorous imprisonment. We now stateour reasons.
The prosecution called only one alleged eye-witness of the assaulton the deceased which resulted in the latter’s death. According to tliiswitness, one Charles, he had been together with the deceased and twoother persons on the night of the incident at the house of one Marshal,assisting in the preparation of food for a function to be subsequentlyheld at that house, and these four persons had been engaged in this taskuntil about 1 a.m. Thereafter five or six persons including the deceasedand the witness Charles were returning to their homes, first along afootpath and then along a narrow road. They were walking in singlefile, and in this line Charles was the third person and the deceased wasfollowing behind him. Just after the party got on to the road, a. personcame from the opposite direction flashing a torch. As that person walkedpast Charles, the latter identified him as this accused. Charles then sawthe accused in the act of stabbing the deceased, although he did not seea knife in the accused’s hands. The accused then turned back in thedirection from which he had come, so that Charles was again able torecognise the accused. The deceased was removed to hospital and surgerywas performed but he died about two days later.
One submission made in appeal on behalf of the accused was that thefailure of the prosecution to call any of the other persons who had beenpresent with the deceased fairly raises the inference that those personsdid not identify this accused as the person who stabbed the deceasedman. Indeed the defence called one of those persons as its witness, andhe admitted that he did not recognise the assailant as being this accused.That witness however had been walking about 10 or 15 feet behind thedeceased and had immediately run away when he saw the act of stabbing.The witness Charles on the other hand had the advantage that the assailanttwice went past him, and that he thus had a sufficient opportunity toidentify the assailant. Moreover, the defence was unable to suggest anyreason why the witness Charles would have testified with such certaintyagainst this accused, if there had been any doubt in his mind as to thecorrectness of his identification. There were in addition statements whichhad been made by the deceased to a Doctor and to a Magistrate in bothof which he clearly stated that he had been stabbed by this accused.
H. N. G. FERNANDO, G.J.—Pcrera v. The Queen219
—T– “-■ '"~' """
We were not able therefore to agree that the Jury should not haveacted with confidence on the evidence of Charles.
hFevertheless we note from the proceedings in the Magistrate’s Courtthat two other persons who had been with the deceased man at thotime of the assault had testified to their identification of this accused asthe assailant. That being so, we do not understand the omission by theprosecution to call one or both of them to give evidence in support of thewitness Charles. That omission could have left in the minds of the Jurythe incorrect impression that Charles alone claimed to have recognizedthis accused.
Counsel for the accused further submitted that the Jury mightwell have returned a lesser verdict than one of murder, but for certainiregularities in the conduct of the trial and in the directions of theearned trial Judge as to the matters established by the evidence.
The fatal assault on the deceased man took place on 9th August 1969.Ini'the statement which he made Ho ■ the Magistrate the deceased hadmentioned an earlier incident “ on 26th or 27th July ” when he had aquarrel with the accused and had hit him a blow -with a bottle.- Sincethe entire statement was read to the Jury at the trial, the Jury becameaware that the deceased had thus mentioned a possible motive entertainedagainst him by the accused ; and the trial Judges directed the Jury thatthis statement did afford evidence of motive.
Learned Senior Crown Counsel who appeared for the Crown in appealconceded that the statement of the deceased man concerning this previousincident had been wrongly admitted in evidence at the trial. We hadoccasion recently in The Queen v. Stanley Dias (C. C. A. Minutes of24.11.70) to refer to a similar improper admission of a deceased’sstatement, not permitted by s. 32 of the Evidence Ordinance becauseit was not a statement as to the circumstances of the transaction which -led to the death of the deceased.
There was also the evidence of the witness Marshal (at whose housethe cooking preparations bad been made) to the effect that the accusedhad also visited his house for a short time on the night before the assault.According to Marshal, the deceased had been busy in the kitchen, butthe people working in the kitchen had occasionally moved from thekitchen to some place .outside where apparently food had been cut andchopped. When the accused came to the house he was seated on theverandah but the people working in the kitchen could not have beenseen from the verandah, bio question was put to Marshal as to whether
220
H. N. G. FERKA503O, C.J.—Perera v. The Queen
people who went from the kitchen to the “ place outside ” could havebeen seen by the accused. Nor was any question put to the principalwitness Charles as to whether he himself had seen the accused on theverandah or whether the deceased had left the kitchen at any time.Despite the fact that the prosecution made no serious attempt to establishas a fact that the accused had seen the deceased in Marshal’s house atany time, the learned trial Judge directed the Jury that they could draw“the natural, reasonable and inevitable inference that the accused didsee the deceased that nicht in the house of Marshal ”, and the furtherinference that the accused had planned beforehand to stab the deceasedwhen the latter left Marshal’s house.
In the state of the evidence, it was in our opinion merely a possibilityand not by any means a probability, that the accused did see the deceasedat Marshal’s house, so that it would have been unreasonable for the Juryto reach an inference beyond reasonable doubt that the accused hadlain in wait for the deceased after seeing him in Marshal’s house. Therewas thus a mis-direction of fact and law as to this part of the evidenceand the inference which could properly have been drawn from it.
In dealing with the question of intention, the learned trial Judgereferred to the injuries on the deceased in somewhat harrowing language,and he attributed to the medical witnesses the opinion that “ no earthlypower could have brought this man to life ” although the witnesses didnot express an opinion in such terms. Although the learned Judge wasquite entitled to express his own opinion as to the intention with whichthe accused acted, his opinion that this was indeed a case of murder wasso strongly expressed that we doubt whether the Jury did in fact troubleto consider any alternative verdict to one of murder. This doubt is bornebut by the fact that the Jury returned their verdict after a considerationlasting less than ten minutes.
We would refer in this connection to the Criminal Justice Act of 1967,which, in amendment of the former English Law, permits a Court toaccept a verdict of the Jury which is not unanimous. Subsection (3)of section 13 of that Act provides as Sallows :—
“ A Court shall not accept a majority verdict unless it appearsto the Court that the Juxf have had not less than two hours fordeliberation or such longer period as the Court thinks reasonablehaving regard to the nature and complexity of the case.”
This provision emphasizes, not only the degree of care which a Juryis required to exercise in the consideration of a verdict, but also theprinciple that the verdict must truly be that of the Jury itself. Despite
AnyarcUne t'. Lapie
2*1.
the formal direction by a trial Judge that the Jury is entitled to disregardhis own emphatic opinions on matters of fact, a failure of the Jury, asin this case, to devote some reasonable time to the consideration of itsverdict, can fairly indicate that the verdict was reached at the Judge’sdictation, and not upon the Jury’s own deliberations.
On the ground just stated, and in view of the reception of improperevidence as to motive and of the misdirections concerning the inferencethat the accused had seen the deceased in Marshal’s house, we consideredit unsafe to sustain the verdict of murder and the sentence of death.
Verdict altered.