062-NLR-NLR-V-54-M.-J.-FERNANDO-et-al-Appellant-and-THE-QUEEN-Respondent.pdf
JM. J. Fernando v. The Queen
255
[Court of Criminal Appeal]
1952 Present: Swan J. (President), H. A. de Silva J. andL. M. D. de Silva J.M.J. FERNANDO et al., Appellants, and THE QUEEN,RespondentAppeals 67—70 with Applications 99—102S. C. 17—■M. C. Colombo, 11,415
Charge of murder Several, accused—Common Intention—Sudden fight—Summing-up
—“ Unreasonable verdict
A jury should never be directed in a way which opens for them the door toconjecture. A trial Judge, by suggesting an unsustainable element of evidencein favour of an accused may, by rendering a verdict founded on that elementunreasonable, make the verdict itself unsustainable.
Where, therefore, in a prosecution of several persons jointly for murder, noevidence has been given whicn could raise the issue of a sudden fight, it isnot the duty of the Judge to invite the jury to speculate as to sudden fight.
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It is very rarely, if at all, that a common intention to kill in the circumstancesof a sudden fight can be established.
No direction as to common intention can be adequate -where the law is statedin general terms and not applied closely to the particular facts of each case.The inference of common intention must be not merely a possible inferencebut a necessary inference, i.e., an inference from which there is no escape.
Obiter ; In a summing-up, a general statement of the law followed by astatement of the facts is undesirable. The trial Judge should apply the relevantlaw to the relevant facts in the course of the analysis of those facts.
^^lPPEALS, with applications for leave to appeal, against certainconvictions in a trial before the Supreme Court.
Colvin R. de Silva, with L. G. Weeramantry and J. R. M. Perera,for the accused appellants.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 15, 1952. L. M. D. de Silva J.—
In this case the 1st to the 5th accused have been convicted on the3rd count of an indictment presented against them which was to thefollowing effect :—
“ That at the time and place aforesaid (17th December, 1950)…. you did commit murder by causing the death of the said
Gorakanage Nicholas Peiris Gunawardene ; and that you have therebycommitted an offence punishable under section 296 of the PenalCode. ”
The verdict brought in by the jury on this count was one of culpablehomicide not amounting to murder “ on the ground that there was asudden fight ”. They have been acquitted on count 1 in which theywere charged with being members of an unlawful assembly the commonobject of which was to commit murder and on count 2 in which theywere charged with murder committed by one or more of tbe membersof the unlawful assembly. There were no other counts.
There are several disturbing features .in this case. There was forinstance blood found on the shirt of the deceased which according toexpert medical evidence could not have been the blood of the deceasedor any of the assailants. It was, if the expert evidence was accepted,completely unaccounted for by the prosecution evidence. It wasalso difficult to reconcile the prosecution evidence with several woundsfound on the first accused. There were further difficulties.
All these features were very fairly and completely put by the trialJudge to the Jury but there is one portion of the summing-up, on which
L. >4. L. XJE SILVA J.—Af. J. Fernando v. The Queen
257
with all respect to him we feel ourselves reluctantly compelled to acquitthe accused—all the more so because it is the portion most materialto the verdict which has been brought in.
The evidence of several witnesses was subject to various infirmitiesall carefully mentioned by the learned trial Judge in the course of hissumming-up. These difficulties and infirmities must have been responsi-ble for his having said to the jury “ I do not think you can convict anyof the accused unless you can say that the evidence of Narayan and theevidence of Sirina Pieris is true ” and he went on to warn them thatit was not sufficient that “ they may be speaking the truth ” but the juryhad to be satisfied that they were speaking the truth. This was anadmirable direction which we think was necessary. The evidence ofthese two witnesses was free from any obvious infirmity and a verdictof murder could have been returned on their evidence. In fact noverdict other than that of deliberate and premeditated murder waspossible if their evidence had been accepted.
Narayan’s evidence very shortly was that he saw the five accusedaccompanied by others armed with cutting instruments, sticks andclubs pass along the road. He says he followed them and saw themstanding in front of the deceased headman’s house and abusing himin filthy language. That he then saw the headman come out of thehouse whereupon the “ first five accused jumped into his land, caughthim and assaulted him ” striking him with clubs and cutting him withknives. He says he saw the third accused “ holding the headman’s(deceased) neck and stabbing him with a kris knife ”.
Sirina Pieris says that she saw ten or twelve persons gathered in frontof her house which is in the immediate vicinity of the deceased’s house,that she heard a challenge to the deceased to open his doors, that thedeceased came out whereupon the five accused rushed up to him andassaulted him. As far as one can gather the deceased was unarmed.She says she saw one of the accused inflict an injury.
In the evidence of the two witnesses just mentioned and in the restof the evidence led for the prosecution there was no suggestion of asudden fight. The evidence led for the defence gave an entirely differentversion of the events denying that the accused came together to the spotand suggesting that the deceased and one Peter Pieris (his brother)were the aggressors. The possibility of a sudden fight was not raisedby the defence in evidence or otherwise.
The learned trial Judge charged the jury thus in one portion of hissumming-up :—
“ Could it be that the 1st and 3rd accused went along the road andthat they met Peter Pieris and that there was an altercation resultingin a fight, and that the other accused also came along and engagedthemselves in a fight in which the headman also became involved ?
How gentlemen that is not the case for the prosecution, nor is itthe case for the defence. There was a fight, but there are items ofevidence in this case which if you accept may justify your returning averdict on the footing, I mean the 1st to the 5th accused got involved
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along -with the deceased and Peter Pieris. Of course it means, gentle-men, rejecting large chunks of the evidence of the prosecution andalso rejecting large chunks of the evidence of the -witnesses for thedefence …. ”
“ Supposing the view that you take is that what happened wasthat there was a sudden fight between Peter Pieris and the 1st and3rd accused in the first instance into which the other accused becamedrawn and to which the deceased headman also got involved, then,even if you are satisfied beyond reasonable doubt that in that fightthese accused had a common intention of causing the death of thedeceased with the intention of killing him, or with the intention ofcausing an injury'sufficient in the ordinary course of nature to resultin death and therefore prima facie the offence of murder, if you aresatisfied notwithstanding the offence was committed with that intention,still if you think that it is more likely than not that that killing wascaused in the course of a sudden fight between the accused and theheadman and Peter Pieris, which arose on a sudden quarrel, withoutpremeditation and without the accused having taken an undue orcruel advantage, then gentlemen the offence of the accused is one ofculpable homicide not amounting to murder if all the five accusedwere animated by a common intention that such an injury shouldbe caused to the headman and that the infliction of that injury wasaccompanied by a murderous intention as explained by me
ft appears to us that it was extremely difficult on the evidence to cometo the conclusion that there was a sudden fight merely by rejecting“ large chunks of the evidence ” of the witnesses for the prosecutionand the defence. It would have been necessary in addition to supple-ment what evidence was left after the rejection mentioned by factsderived from conjecture. If there was reason to think that there wasa sudden fight which the prosecution witnesses had suppressed, then,fairly considered, the prosecution case would have been open to reason-able doubt and the accused would have been entitled to an acquittal.But a verdict can never be based upon facts suspected but not proved.
A jury should be told to accept or reject evidence that they are entitledto and should draw reasonable inferences from the evidence which theyaccept, but they should never be directed in a way which opens for themthe door to conjecture. This is necessary not only in order thatthe case for the defence may not be prejudiced but also in the interestsof the prosecution. It has to be remembered that a trial judge by sug-gesting an unsustainable element of evidence in favour of an accusedmay by rendering a verdict founded on that element unreasonable makethe verdict itself unsustainable. The prosecution case can be prejudicedin other ways also. The following passages from decisions in Englishcases have a bearing on what we have just said. Dealing with anAppeal on a conviction for murder the Lord Chief Justice said in thecase of The King v. Catherine Thorpe 1, “If there is no evidence on whicha verdict of manslaughter can properly be found, it is the duty of thejudge not to leave the question of manslaughter to the jury, but if there
1 (1925) 18 Or. A. It. 189.
L. M. D. DE SILVA «T.—M. J. Fernando v. The Queen,
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is evidence, then it is the duty of the judge to leave the question to thejury, notwithstanding that it has not been raised by the defence, and isinconsistent with the defence which is raised In the case of Manciniv. Director of Public Prosecutions1, Viscount Simon said, “ Taking,for example, a case in which no evidence has been given which wouldraise the issue of provocation, it is not the duty of the judge to invitethe jury to speculate as to provocative incidents, of which there is noevidence and which cannot be reasonably inferred from the evidence
It is clear that we are not in a position to ascertain the reconstructedfacts in the minds of the jury which led to the verdict of a sudden fightand this is an important factor which gives emphasis to what follows.
It is admitted by Crown Counsel that there was only one fatal injuryand that upon the evidence and verdict we must proceed upon the basisthat it is not ascertained which accused inflicted it. In fact CrownCounsel quite properly conceded that unless the element of commonintention to kill the deceased can be sustained the conviction cannot stand.
We are of the opinion that the directions given on the question ofcommon intention is inadequate particularly when, as in this case, thecommon intention to kill, which must be established, was formed ifformed at all, in the course of a sudden fight. It is very rarely if at allthat a common intention to kill in the course of a sudden fight (whichmust be assumed to be a “ sudden fight ” on a “ sudden quarrel ” andwithout “ premeditation ”) can be established. It must in this casehave been formed, if it was formed at all, “in the twinkling of an eye ”,to borrow the words used very appropriately by Crown Counsel. Someact must be proved or some circumstance established from whichcommon intention could be reasonably inferred. No direction on thispoint was given to the jury. In this case there is no such circumstanceor act established or even spoken to by the witnesses. As we do notknow what facts the jury reconstructed we cannot review them to ascer-tain whether an inference of common intention was possible on thesefacts. It is however reasonably clear that without premises derivedfrom conjecture they could not have found that such an act had beendone or such circumstance had occurred.
It is true that the learned trial Judge did say :—
“ Of course, if there was a sudden fight between these accused and theheadman and in the course of that one of the accused all of his ownwent up to the headman and stabbed him, then the other accused areclearly not guilty of that offence ”, but we do not think this was a suffi-cient direction. It was an illustration of what was not commonintention. There was no doubt further direction on the question ofcommon intention but the positive elements, if there were any, fromwhich common intention could have been inferred were not put to thejury. The jury were told that they must find that there had been a“common intention animating the minds” of all accused but they werenot told how in the circumstances of a sudden fight such a commonintention could be held to have arisen in this case. They were nottold that mere presence of the accused was not sufficient and the difference1 (1942) A.. G. page 1 at page 12.
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between “ similar intention ” and “ common intention ” was notexplained. The Privy Council in the case of Mahbul Shah v. KingEmperor 1 said: “The inference of common intention within the meaningof the term in the section should never be reached unless it is a necessaryinference deducible from the circumstances of the case It is tobe noted that it must be not merely a possible inference but a necessaryinference, that is to say, an inference from which there is no escape.There was no direction to his effect.
Numerous decisions (most of them mentioned in King v. Assappu 2)of this Court have stressed the importance of a sufficient direction onthe question of common intention. These decisions point to the neces-sity of quashing a conviction based on common intention unless it appearsfrom the summing-up that the possibility of an erroneous view on thepart of the jury on this question has been excluded by adequate direction.It should be said that it also appears from them that no direction canbe adequate where the law is stated in general terms and not appliedclosely to the particular facts of each case.
On this last point we may be permitted, going further than is necessaryin this case, and taking an extreme case which is not this case, to saythat in a summing-up a general statement of the law followed by astatement of the facts is undesirable. A summing-up should avoid notonly the pattern just mentioned but any pattern which approximatesto it. Prom a practical point of view it should be realised that a juryis not likely to absorb a long disquisition on the law and the significanceto be attached to such a disquisition is problematical. What is ofimportance is that with or without a preliminary general disquisitionthe trial judge should apply the relevant law to the relevant facts in assimple a manner as possible and in the course of the analysis of thosefacts. The closer he keeps to this narrow path the more likely is it thatthe jury wall arrive at a correct conclusion and more clearly will it appearto this Court that justice has been done.
We feel unable to accept the only theory which was put forward bythe Crown in support of the conviction. In view presumably of thedirection that the accused were entitled to an acquittal unless the evidenceof Narayan and Sirina was accepted it was urged that a sudden fightwas consistent with their evidence. The theory was that the headmanhad advanced thirty-five feet before he was struck down and that thisshowed that he had accepted the challenge of the accused and engagedin a fight. The fight had to be upon a “ sudden quarrel ” and “ unpre-meditated It was difficult to see 'how these elements could havebeen established if Sirina and Narayan were speaking the truth whenthey said that the accused went armed to the spot and made a challenge.The Crown sought to get over this by suggesting that the jury mighthave found that it was Peter Pieris (living in the vicinity) that theaccused had come to challenge and did in fact challenge and that thedeceased on coming out of his house was drawn.into a sudden unpre-meditated fight. The evidence of the two witnesses indicates that it1 (1945) A. I. R. 118.2 (1948) 50 AT. L. R. 324.
Romanis Singho v. Absysinghs
261
was the deceased who was challenged. In any case we think the occur-rence of a sudden fight is entirely inconsistent with their evidence andit has to be remembered that a point made by the learned trial Judgewith which we have already agreed is that it would be unsafe to convictthe accused if the evidence of these two witnesses was open to doubt.
The theory put forward by the Crown serves to illustrate the dangerof holding that a common intention was established. On the factssuggested by the Crown the accused arrived at the spot armed to attackPeter Pieris. Their attention was diverted to the deceased againstwhom it appears the accused cherished no animosity of a degree compara-ble with that which they cherished against Peter Pieris. “ In the twink-ling of an eye ” there was a fight between the accused and the deceased.Someone inflicted an injury which was fatal. In this state of facts thecircumstance that the accused were armed establishes neither “ commonobject ” nor “ common intention ” in an offence against the deceased.What other facts establish common intention on the part of the accusedto kill him ? There are none which we think can safely be relied on.
For these reasons we quash the convictions and acquit the accused.
Convictions quashed,.