015-NLR-NLR-V-73-N.-L.-DAMAYANU-and-anotherAppellants-and-THE-QUEEN-Respondent.pdf
Damayanu v. The Queen
Cl
[Court of Cri-mixxl Appeal]
1969 Present: H. N. G. Fernando, C.J. (Fresident}, AUes, J., andWijayatilake, J.N.L. DAJMA VANL' and another, Apiiellanfrf. andTHE QUEEN. Respondent
Appeals Nos. 101 axd 102 or 196S, with ApplicationsNos. 150 axd 151
S. C. JJ/6S—-J/. C. Oumpaha, 14757fA
Trial before Supreme Court—Defence of alibi —Quantum of evidence—Sununiny-up.
Tlio principle which governs the consideration of evidence relating to thedefence of an alibi applies also in a case trherc the defence leads evidence tothe effect that some person or persons, other than the accused, committed the' act or offence charged. In such n case, a statement in tho summing-up thatthe accused must be acquitted if the defence evidence ‘ raises a reasonabledoubt in the minds of the Jury as to the guilt of the accused docs not- constitute a misdirection. *
* C2 T. L. R. 445 at 446.
-02II. X. c. FEI»yAXDO, C.J.—D■jufipii'.i v. The Queen
.APPEALS against two convictions at a trial before the SupremeCourt.*'’.
K.R. S. R. Coomaraswamy, with C. Chakradaran, V. Shan muganalhan,Kokalit Wijayalilake and S. C. B. Walgampaya. for the 1st accused-appellant.
Colvin R. de Silva, with Xihal Jayauickf>i>ua, 1. S. de Silva and■ C. Sandrasagara, for the 2nd accused-appellant.
J.N. David (assigned Counsel).
T.A. de S. IVijesundera, Senior Crown Counsel, for the Crown.
Cur. adv. vult.
June 23,1DG0. H. N. G. Fernando, C.J.—
Four accused, tlxe first and third of whom are sons of the second, andthe fourth h?s daughter, were charged with the attempted murder of thebrother of the second accused. The injured man himself was not awitness of the trial, because he was stated to be suffering from amnesiaresulting from his injuries. The prosecution therefore relied on theevidence of his wife and daughter, according to whom the four accusedcame to the house of the injured man, and assaulted the latter on the
verandah, and having dragged him out of tlic house assaulted him againon the road. The Jury by a verdict of 6 to 1 found all four accusedguilty of the charge. The 1st and 2nd accused were each sentenced to aterm, of 4 years imprisonment, and the other two accused were released
. on probation
Tlxe wife of the 2nd accxised gave evidence for the Defence. Accordingto her, she had oix the day of the incident gone to pick cadju fruit on a
land owned ixx common by her husband and the injured man, which land
is situated just across the road opposite the residing land of the injuredman. Because, she said, of some previous displeasure, the injured man
: came up and attempted to assault her with a club, but she •warded off
these blows by picking up a chair which happened to be at the scene. Atthis stage, her two daughters (one of them the 4th accused), who werecutting firewood at the time with a katty and a manna knife, came up
and defended her by assaulting the injured man with those weapons.Sho denied that her husband and sons participated in any assault.
Tlx® learned Commissioixer, as also Counsel who argued the appeal of .the accused, were of the view that the defence was that of an alibi. With; respect,.this is not strictly correct. Evidence that an accused person
was not present at the scene of a crime is by itself oixly a denial ofpresence and therefore of the coxxxmission of the offence. The defence –
H. X. G. KERNAXDO, C.J.—Damayanu c. The Queen
63
becomes one of alibi only when there is direct evidence that the accusedperson was at a different place at or about the relevant time ; in such asituation the defence adds to its denial of presence by the attempt toprove that the accused was probably at a different place.
Nevertheless, we agree that the principle which governs the con-sideration of alibi evidence applies also in a case where the defence leadsevidence to the effect that some person or persons, other than theaccused, committed the act or offence charged. In this instance, theversion for the defence was that the act charged was committed by the4th accused and her sister, and that the other accused did not participatein the assault on the deceased.
In several passages in the summing-up, the learned Commissionerdirected the Jury that, if the defence evidence created any reasonabledoubt in their minds as to the participation of the 1st, 2nd and 3rdaccused in the assault, all these accused must be acquitted, and in sodirecting he refrained from stating that there was any burden on thedefence to establish the truth of the defence version, whether on aba lance of probabilities or otherwise.
Counsel has relied on the judgment of this Court in the ease of YahonisSingho}. The defence in that case, where the accused was charged withmurder, relied on the evidence of a witness Sirimnne that the accusedwas in a boutique about a quarter of a mile away from the scene of themurder at the relevant time. The trial Judge, at two separate stagesof his charge, directed the Jury substantially to this effect “ if you acceptSirimanc’s evidence, it immediately throws doubt on the prosecutionevidence.”
The conviction in the case of Yahonis Singho was set aside by thisCourt on a ground succinctly stated in the judgment:—
“ As the jury convicted the appellant,.it must be assumed that theydid not accept the evidence of Sirimanc. The learned judge directedthe jury, if we n:ay say so with respect, correctly as to what course .they should follow if they rejected the evidence of .Sirimnne. He,however, omitted altogether at both stages of his charge referred toabove to give them any direction ns to what they were to do if theyneither accepted Sirimanc's evidence as true nor rejected it as untrue,•furors may well be in that position in regard to the evidence of anywitness. There was in this case no question of a shifting of the burdenof proof which throughout lay on the prosecution. If Sirimane’sevidence was neither accepted nor was capable of rejection, theresulting position would have been that a reasonable doubt existed asto the truth of the prosecution evidence… Wc think the omission todirect the Jury on what may be called this intermediate position wherethere was neither an acceptance nor a rejection of the alibi was anon-direction of the jury on a necessary point and thus constituteda mis-direction.”
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Ci
Hala.foori-ja v. Municipal Council, Kiirvtifynla
■ -It will be seen that the misdirection or non direction in that caseconsisted in the omission of the trial Judge to direct the Jury toconsider whether the defence evidence may create a reasonable doubtas to the guilt of an accused person or as to the truth of the prosecutioncase, even if the Jury were unable to accept the defence evidence as• being probably true. In the instant case, however, the Jury were toldquite clearly that they must acquit the first three of the accused if theevidence of the 2nd accused’s wife, raised a reasonable doubt as to theparticipation of those accused in the assault. That being so, there wasnot licre the same omission as in the case of Yahonis Singho. A direction,that the accused must be acquitted if defence evidence raises a reasonabledoubt must surely result in an acquittal if the defence succeeds in themore difficult task of persuading the Jury that its version is. probablytrue.•.
We see-no reason to interfere with the verdict and sentences in thiscase. The appeals arc dismissed..%
Appeals dismissed.