088-NLR-NLR-V-54-JUAN-APPUHAMY-Appellant-and-THE-QUEEN-Respondent.pdf
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GUNASEKARA J.—Juan A-pprthamy v. The Queen
[Court op Crxmxnal Appeal]
1952 Present : Gimasekara J. (President), Swan J. and H. A. de Silva J..
JUAN APPUHAMY, Appellant, and THE QUEEN, RespondentApplication 92 of 1952S. G. 22—M. C. Chilaw, 49,370
Jury—Verdict—Quorum necessary—Discharge of jury when they cannot agree—-Criminal Procedure Code, ss. 223, 247 (1) and (2), 248 (2), 250.
If the jury or the required majority of them cannot agree in. regard to the-verdict it is a matter for the trial Judge to decide, in the exercise of his dis-cretion, -whether he should discharge the jury or advise them to continue theirdeliberations for a further period and see if they can arrive at a verdict.
Application for leave to appeal against a conviction in a trialbefore the Supreme Court.
M. M. Kumarakulasingham, with. J. C. Thurairatnam and Mahesa-Ratnam. (assigned), for the accused appellant.
H. A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
October 31, 1952. Gtoasekaea J.—
This is an appeal against a conviction for murder. The appellant, who -was convicted on the 10th September, had beep, defended at the trialby three counsel, including an advocate assigned by the court. Never-theless, all the grounds set out in the notice of appeal were abandoned(as, in our opinion, they ought to have been) by counsel who appeared-for him at the hearing of the appeal. Mr. Kumarakulasingham confined-
fiTTWASBK ARA J.—Juan Appuhamy v. The Queen
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himself to the following supplementary ground, of which, notice was givenby Mr. Mahesa Ratnam on the 3rd October :
“ The learned Judge was not warranted by law to ask the Jury toreturn an acceptable verdict when they were divided by 4 to 3. ”
In view of the importance of the question involved and the circumstancethat this is an appeal against a conviction for murder we permittedlearned counsel to argue this ground of appeal although notice of it hadnot been given within the prescribed time.
The material facts appear from the following passage in the shorthandnotes of the proceedings at the trial:
“ Court sums up.
Verdict•.
(Jury retire at 3.43 p.m. and return at 5 p.m.)
Clerk of Assize : Mr. Foreman, are you unanimously agreed uponyour verdict ?
Foreman : No.
“ Clerk of Assize : How are you divided ?
Foreman : Four to three.
Court to Jury : An acceptable verdict is a verdict of 5 to 2. Is itpossible that if you reconsider the matter youwill arrive at such a verdict ? Each of you isentitled to his own opinion but there is no objectionto a change of opinion based on further discussion.Will you kindly go back and see whether you canarrive at an acceptable verdict of 5 to 2 ; or do youthink it is not possible ?
Foreman / We will retire again.
(Jury retire again at 5.05 p.m. and return at 5.20 p.m.)
Clerk of Assize : Mr. Foreman, are you unanimously agreed uponyour verdict 1
Foreman : No.
Clerk of Assize : How are you divided 1Foreman : Five to two.
Clerk of Assize : Do you find the prisoner guilty or not guilty of theoffence of murder ?
Foreman : We find him guilty of murder. ”
The Criminal Procedure Code provides, by section 223, that the juryshall consist of seven persons and that the verdict returned aTig.ll beunanimous or by a majority of not less than five to two ; and, by section250, that if the jury or the required majority of them cannot agree thejudge shall after the lapse of such time as he thinks reasonable dischargethem. It is contended for the appellant that when the foreman statedthat the jury were divided in the proportion of four to three the onlycourse open to the learned judge was to discharge them.
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GUNAS^KARA J.—Juan Aqypuhamy v. The Queen
Under section 247 (2) a jury who are ready to give their verdict may,if they are not unanimous, be required by the judge to retire for fartherconsideration before a verdict is returned, and under section 248 (2) a jurywho have returned a verdict of which the judge does not approve may bedirected by him to reconsider their verdict. Mr. Klumarakulasinghamcontends, and we agree with him on this point, that in this case there wasno exercise of the power given to the presiding judge by either of theseprovisions. When the jury retired a second time they had not returneda verdict nor, being divided in the proportion of four to three, had theybeen “ready to give their verdict” : as was observed in the judg-ment of this court in R. v. Navaratnamx, a statement by the foremanthat the jury were divided four to three “ cannot in any sense be regardedas a verdict ”.
Section 247 (1) provides that when the jury are ready to give theirverdict and all are present the registrar, whose functions may in termsof section 442a be performed by a clerk of assize, shall ask the foreman ifthey are unanimous. -The clerk’s question to the foreman, when the juryreturned at 5 p.m., as to whether they were unanimously agreed upontheir verdict, may have been put upon the assumption that they wereready to give their verdict. The foreman’s answer to the next question,however, showed that they were not ready to give a verdict, and thereforethat the stage contemplated by subsection (1) of section 247 had notbeen reached. In this view of the matter it is not necessary to discussa question that was raised by Mr. Kumarakulasingham as to whether thepower given to the judge by subsection (2) can be exercised after he hasascertained in what proportion the jury are divided.
The effect of the foreman’s answers to the questions put by the clerkon this occasion was that at the end of their deliberations for about anhour and a quarter the jury or the required majority of them could notagree. We do not understand the law to be that in such circumstancesthe judge has no discretion as to whether he should discharge the juryor not but must discharge them. What is laid down in section 250 isthat he “ shall after the lapse of such time as he thinks reasonable dischargethem ”. We are therefore of opinion that when the learned judge wasinformed of this inability on the part of the jury or the required majorityof them to agree it was a matter for his decision in the exercise of hisdiscretion whether he should discharge the jury or advise them rocontinue their deliberations for a further period and see if they couldarrive at a verdict. We may here observe that it would not be entirelyaccurate to say that what the learned judge did was “ to ask the juryto return an acceptable verdict ”. What he actually said was : “ Will youkindly go back and reconsider the matter and see whether you can arriveat an acceptable verdict of o to 2 ; or do you think it is not possible ? ”.Thereupon the jury themselves, through the foreman, indicated that theywished to retire again. In our opinion there was no irregularity in theprocedure that was adopted.
The appeal is dismissed.
Appeal dismissed. 1
1 (1945) 46 JV. L. It. 181 at 183.