014-NLR-NLR-V-57-REGINA-v.-PINTHERIS-et-al.pdf
[Tjr the Court of Crimixal Afvf.u.]
1955Present: Basnayake, A.C.J. (President), Pulle, J., andFernando, J,REGINA v. PIXTHERIS el at.
Attlicatioxs 93-9u of 195o.S'. C. 12— M. C. Mutant, l,MO
Conviction for murder—Grounds of appeal—Time limit for stating them—Strict com•pli'ivce necessary—Court of Criminal Appeal Ordinance, -Vo. 23 of 193$, ss. J,6 ((). S (/), 16..
Evidence—Burden of proof—“ Hcasonable doubt'’—Misdirection.
Held (hy (lie majority of tlio Court), (lint, in lhi* rase oT u convictioninvolving sentence of death, fresh grounds of appeal, in addition to thosostated in tho notice of appeal or application for leave to appeal, will not boentertained by the Court after tho expiration of the time limit of fourteen dayslaid down in section S (1) of tho Court of Criminal Appeal Ordiiumro.
Tho three prisoner* were convicted of murder. Tho defence of tho1st and 3rd accused was that, they acre not present at tho sccno of tho offenceand took no part in it, while tho defence of tho 2nd accused was that ho killedtho deceased in tho exercise of tho right of private defence. Of tho threoaccused, only the second gave evidence at tho trial. He stated that ho actedin self-defence and that the 1st and 3rd accused were not present at tho scene.
In tho summing-up, the Judgo stressed that if tho jury accepted the evidenceof tho 2nd accused that tho 1st and 3rd were not present at tho scene they had toacquit tho 1st and 3rd accused. Ho did not, however, direct tho jury thatif tho version of tho 2nd accused raised reasonable doubt os to tho presence ofthe 1st and 3rd accused theso two had still to bo acquitted.
Held, that even if tho jury held that tho burden resting on tho 2nd accusedin regard to his own dcfenco had not been discharged because they were leftin a. state of honest doubt whether or not to accept the material ports of hisovidcnco it was nevertheless possible that ho raised a reasonable doubt as totho presence of his co-prisoners. Tho 1st anil 3rd accused wore thereforeentitled to succeed in appeal on t lie ground of misdirect ion.
PPLIG'ATI OXS for leave to a j) peal against three convictions in atrial beforo the Supreme Court-.
Colvin R. dc Silva, with R. A. Kannangara ancl H/. D. Thdmotkeraw,for the accused-appellants.
V. T. Thamothcram, Crown Counsel, for th.e Attorney-General.
3LVII
83, X. B 40373-3,598 (10/35)
(fur. ady. yuH,
August 25, 1955. Pcijle, J.—•
The tJirco prisoners, of whom the first is the father of the second aridthe third, were convicted on the charge that they did on tiro 7th November,1954, commit murder bj* causing tho death of ono Ganhewago Samsonand were sentenced to death. Tho case for the prosecution was thatthe death of tho docoased was caused by a joint attack of tiro prisoners,of whom the first and second were armed witlr katties and tho third witha mammoty. The defence of the first and tiro third was that they' werenot present at tho scene of the offenco and took no part in it, wliilo thedefence of tho socond was that lie killed tho doecascd in the exercisoof tho right of privato defence. The principal submission made onbehalf of the first and third is that tho learned Commissioner in his chargeto the jury failed to differentiate their defence from that of the secondthereby creating an impression on the minds of the jury that if theyrejected the defence of the second they had perforce to convict the firstand tiro third. In regard to the second prisoner it was urged that themanner in which a statement made by him to the Police was elicitedin evidence was gravely prejudicial to Iiis defenco and amounted to amiscarriage of justice. At tho close of the argument wo set aside theconvictions of the first and third prisoners and dismissed the appeal of thesecond and refused liis application for leave to appeal and intimated tolearned counsel that we would deliver our roasons later.
To understand the submissions made on behalf of the prisoners it isnecessary to state the evidence in greater detail. According to thoprosecution the events which led to the death of the deceased happenedin two stages. According to the witness G. H. Peter, the elder brotherof the deceased, lie was returning from a boutique with a bag of flourand sugar and some articles along a path running over a field when he metthe second prisoner. The latter had a katty and some cassava. Thowitness taxed the prisoner with having behaved improperly towards hissister Sop ilia my who was married to one Sumatbipala Abeyaguna-wardena. Words passed between the two and a blow with the kattyinjured the right- knee of Peter. The bag of sugar and flour fell downand then ensued a tussle for the katty. In responso to the cries of Potcr,Sumatbipala ran up to the spot, wrenched the katty and throw it into thofield. Thereupon the second prisoner ran across tho hold over a hdgetowards the direction of his liouso where ho was living with his father,tho first prisoner. Sumatbipala asked Peter to remain at tho spot andset out to make a complaint to tho Police.
About fiftcon or twenty minutes afterwards Peter says he saw thodeceased first at a distance of about 100 yards and also the three prisoners.Tho prisoners were converging towards the deceased from a route differentto that taken by the latter. About thirty feet away from wlicro Potcrwas lying the prisoner closed in on tho deceased.- The first- blow wasdealt- by tho fathe-r with a katty on the head of t-lio deceased. He wasfelled to the ground whereupon the second prisoner attacked with a kattypnd the third with' n mammofy. When the two sisters ran up to the
deceased they were also sot upon. Peter says ho too went- up with somedifficulty. Hq was injured by blows struck by lho second and thirdprisoners.
Of the prisoners only the second gave evidence. According to himthere was only one incident in tho courso of which lie clashed with, bothPeter and the doceased under circumstances different to what was deposedto by the prosecution witnesses. He says that in the course of tho strugglewith Peter he did not loso hold of tho katty and succeeded in escapingwith it and ran along the fiold for some distance and got on to the foot-path. He continued his story as follows :'.
Then I met a certain man whom I could not recognise. He said,
* Take this follow to bo eaten Ho came towards me. I jumpedinto the field. He had a katty in his hand. After 1 escaped from Peter,Sumnthipaln and Sopihamy went away. That man aimed a blowat me. Then I also struck hint with the katty. I cannot snv how manyblows I dealt. T gave him more than one blow. ”
Ho went on then to say that Peter and others came up to the spotand ho attacked them as well. Then he threw tho katty into tho fieldand went home whore he asked his father to accompany him to-thePolice. He next proceeded to Waralla Police Station and made a state-ment at about 7 p.m. Tho contents of this statement were elicitedin the circumstances which will be referred to later.
When tho charge to the jury is examined tliero arc directions of ageneral character to the effect that tho burden rested on the prosecutionto prove its ease against each accused beyond reasonable doubt. TheCommissioner also stressod in a number of passages that if the juryaccepted the evidence of the second prisoner that the first and the thirdwere not present at the scone they had to acquit the first and third.The complaint is that, while it was obvious that if the jury thought thatthe version given by tho second prisoner was probably true they had toacquit the first and the third, the Commissioner did not direct the jurythat if flie version of tho second prisoner raised a reasonable doubt as tothe presence of the first and third these two had still to bo acquittedand that the failuro so to direct amounted to a misdirection resultingin a miscarriago of justice. It was submitted with considerable forcethat the frequencj- with which the jury ncre told that, if they consideredthe evidence of the second prisoner to be probably true, then the firstand third were entitled to be acquitted may have'created the impressionthat if they rejected the plea of self-defence set up by tho second prisoner,then they had necessarily to convict all three prisoners of murder. Ttsuffices to quoto only two or three passages from tho charge on whichlearned Counsel for tho appellants based his submission :
“ You consider tho whole case and sec whether there is any truthin tho second accused’s story. If you do not accept- his story then
you reject it. If you Accept it, oh the other hand, then tho first andthird accused are not guilty. ”…
“ You will ask yourselves the question whether the prosecutionstory is true, that proof must bo to a high degree of certainty, orwhether the second accused’s story is probably true. It is a matterfor you to decide. ”
“ It- is now for you to decide whether lie (the second prisoner) actedin tho right of private defence. Ho had that right at that stage, ifwhat he says is true, and if you accept that ha acted in the right ofprivate defence then the first and third accused will get- off. ”
After the second prisoner had given evidence and closed his defence,the prosecution had on his oini admissions fully' discharged its burdenas far as be was concerned and his conviction for murder was inevitable,unless the jury were satisfied that lie bad proved the existence of citherexculpatory or mitigatory circumstances. The first and third prisoners,however, were not in like peril. The burden was still on tho prosecutionto satisfy the jury that they wore present in tho company of the secondprisoner and took part, in a concerted attack on the deceased. Kvenif the jury had rejected out of hand the plea sot up by the second prisoner,they had still to be satisfied that- they could with, confidence accept theevidence of tho prosecution witnesses implicating the first and thirdprisoners. If the jury held that tho burden resting on (he second prisonerhad not boon discharged because they wore left in a state of honest doubtwhether or not to accept the materia! parts of his evidence, it. becomesobvious that wliilo his defence had in law to fail, lie Had neverthelesssucceeded in raising a reasonable doubt as to the presence of his co-prisoners. In this view of tho matter the first and third prisoners wereentitled to succeed in this appeal on the ground of misdirection. Therewas nothing so very compelling in the evidence called for the prose-cution to have justified us.in applying the proviso to section 5 C) of theCourt of Criminal Appeal Ordinance, No. 23 of 103t>.
It is common ground that tho first information connected with thiscaso was given to tho l’olice by the second prisoner. 3 hat fact waselicited by the prosecution from the police officer who recorded liisstatement. In the course of his evidence in cross-examination lie stated,
‘•' The 2nd accused made a complaint, to me. I recorded liis
statement-. 1 did not take him into custody. "
At this point the record roads,..
“At this stage court asks tho jiuy to retire and they do so. Court-explains the implications of that question.to tho defence counsel andasks whether ho is going to call the accused and produce the state-ment. Defence counsel gives an undertaking to put in the statement
and call the accused. Jury returns. Court explains to the jurythat a statement or confession made by an accused person cannot boput in evidence .during the prosecution case. He state3 that theDefence counsel has given an undertaking to call the accused andproduce that statement. ”.-.
In our opinion the learned Commissioner should not have apprisedthe jury of 'what took place in their absence, for it defeated the verypurposo for which they were asked to retire. The. reference to a confes-sion by an accused persen would ha-ve had dangerous repercussions if,as fortunately it did not happen in this case, the jury were in ignoranceof the statement which was definitely non-confessional. Again, therewas nothing in the evidence given by the police officer which necessitatedan undertaking by counsel to produce that statement-. Eventuallyhe kept his undertaking and proved that statement through the samejjolice officer. The procedure adopted to obtain evidence of that state-ment is irregular but having regard to the terms of that statement whichwas not challenged as being an incorrect record and which might legiti-mately have been used to contradict the evidence given by the secondprisoner, wc are of the opinion that no prejudice of any kind was causedto him. It is manifest that the jury rejected the plea of self defenceand we have seen no reason to doubt the correctness of the verdictagainst him.'
There remains to be considered the preliminary objection taken bylearned Crown Counsel that the court should 3iot entertain the additionalgrounds of appeal on which it was sought to argue this case. The dateof the convict-ions was the 2nd August, 1955, and a notice of appealand applications for leave to appeal in Form XXXIU dated the same daywere lodged with the clerk of assize. The prisoners were defendedby counsel and proctor whom they had retained and with, them wasassociated the proctor who had been assigned to defend them. It wouldservo no purposo to pursue the question whether the lawyers whomhe had retained should have advised them early in regard to the groundsof appeal. If the'lawyer who is assigned certifies that he has draftedthe grounds of appeal lie is entitled to a fee but he is under no obligationby reason of tire assignment to settle the grounds of appeal. The factthat learned counsel for the prisoners did not rely on a single one of thegrounds appearing in the notice suggests that they received no advicefront any of the lawyers who took part in their defence, a situation which,whatever be the reason, is much to be deplored. –•'-
This appeal was set down for hearing on Monday the 22nd August.On that day learned senior counsel sta ted he wished to urge fresh groundsof appeal and asked for an adjournment until the next sitting commenc-irig on the 5th' September. We intimated to him that we'were not-prepared to grant the adjournment but only the concession of placingthe case at the bottom of the list-. On lho 23rd August when the casewas reached at the point at which it was originally listed counsel handed
up to the court the fresh grounds of appeal. Crown Counsel luvd beeninfornled orally on tbo 22nd evening of the new points. Me acceptthe statement of counsel that the transcript of the evidence and thecharge was not ready until late on Friday the 19th August but not asjustifying an application'to add fresh grounds.
The objection taken by the Crown that the court should not entertainfresh grounds was supported on the authority of The King v. Bello Singhoel al. ’ In that case in which the appellants had been sentenced to deaththe notice of appeal was filed on the 2oth September, 1917. A furtherground of appeal was filed out of time on the 19th October, 1947, andat tho hearing counsel for the appellants sought to raise yet anotherpoint to which an objection was taken and upheld. In the judgmentreference was made to Bex. v. Cairns – in which counsel for the prisonerin a capital case asked for leave to add at the hearing misdirection to thogrounds of appeal, though it was not mentioned in the notice. Thecourt granted leave as it was a capital case. At the conclusion of thejudgment the I.oicl Chief Justice referred with approval to Rex v. Wyman 3in which Darling, J. said,
Tho Court wishes it to be understood that in future substantialparticulars of misdirection, or of other objections to the summing-up,must always bo ret out in lho notice of appeal, even if the transcriptof the shorthand note of the trial has not been obtained. Such partic-ulars must not be kept back until within a few days of the hearingof the appeal. If Counsel has a genuine grievance regarding a summing-up, he knows substantially what it is as soon as the summing-up isfinished, and can certainly specify his general objection when hesettles tho notice of appeal. "
“ This direction the Court has repeated in later eases. In futureit will act upon it. ”
Apparently one of the later cases was Bex v. Benjamin Adler ‘. Afterreferring to a number of cares decided by this court the learned President(Jayctileke, J.) raid,
These decisions show that the practice of raising points which arcnot ret out in the notice, which, I regret to say, seems to be growing,has been condemned in no uncertain terms ….Me thinkit is desirable that this Court should act upon the words of the LordChief Justice in Bex. v. Cairns and insist on a strict compliance- withthe provisions of tho Ordinance. ”
. Dr. Colvin R. de Silva conceded that the case relied .on by CrownCounsel was in. point but argued that it was. wrongly decided. 1 he
> (1917) -IS X. L. R. 512..* 13 C. A. R. 163. 165.
* 20 C. .4. n. 11.1 17 C. A. ft. 105.
substance of his arguniont is that thcro is nothing in .the Ordinancewhich ties an appellant down to the grounds set out in the notice ofappeal and that once grounds for setting aside the verdict exist, eventhough they be raised for the first time at the hearing, tho provisionsin section 5 (1) of tho Ordinance make it mandatory on the Court to setaside tho verdict, the words being, “ Tho Court of Criminal Appealbn any such appeal against conviction shall allow the appeal -'
The majority of us are unable to accept this submission. It is elemen-tary that there is no right of appeal from a decision of a judicial oi• othertribunal, unless such a right is conferred by statute. It flows from thebounty of the Iegislatui'e and, therefore, the same legislature can imposeany restrictions it pleases on the exercise of that right and lienco noarguniont can bo validly addressed to a court to the effect that therestrictions might work harshly in any particular case.
The strictness with which procedural steps required by statute toconstitute an appeal are insisted on is exemplified in the case of Coldmanv. Kade 1 in wliicli a person who had been convicted befoi'e a bench ofjustices handed in their presence to the clerk of the court an applicationsigned by him requesting them to state a special case. The clerk liandodthe application to the justices who stated a case, even though the appli-cant did not conform to ride 52 of the Summary Juviscliction Rules whichrequired hint to serve on each of the justices a copj' of tho application.The appeal came on for hearing beforo the King's Bench Division con-sisting of Viscount Caldecote, L.C.J., Humjihreys and Birkott, JJ.The respondent took the preliminary point that the court had no powerto hear the appeal as the rule in question was mandatory in characterancl had to bo strictly complied with. For tho appellant it was con-tended that the procedure followed was sufficient, since the rule had beencomplied with in substance. In rejecting this argument tho Ford ChiefJustice said,.
‘‘ Counsel for the appellant raised the point that-, though tho ruleshave not been complied with in their literal sense, something has beendone which is sufficient to satisfy tho substance of the intention ofthose rules. Cases have been cited to us which show that the court, in-cluding the Court of Appeal, have taken a stricter viow than that ofthese provisions. Wo think that the objection taken by counsel forthe respondent is one that stands good on the strength of thosedecisions, and that ice have no power to hear this special case. ”
Tho case of Cosmos v. Commissioner of Income Tax2 followed in NorthWestern Blue Line v. K. B. L. Perera 3 is illustrative of the same principle.
In Be Skanojf v. Glanzer * it was laid down that a rulo governing serviceof notice of appeal from a decision must be strictly complied with andthat otherwise the appeal court has ho jurisdiction to hear the appeal.One is also familiar with several decisions of the court of appeal in Ceylon 1
to. tho effect that where a procedural step in tho Course of perfecting anappeal is not 'taken within the prescribed time it has no jurisdictionto extend tho period. Crates' on Statute Raw 1 states tho position asfollows
When a statute confers jurisdiction upon a tribunal of limitedauthority and statutory origin, the conditions and qualificationsannexed to the grant must bj strictly complied with. ”
Xow the substantive right of appeal conferred by section 4 mustbo read with the procedure laid down in section S (1) whichstates,
“ Where a person convicted desires to appeal under this Ordinanceto tho Court of Criminal Appeal, or to obtain tho leave of that court,to appeal, lie shall give notice of appeal or jiotico of his applicationfor leave to appeal, in such a manner as -may be directed by rules of court,within fourteen days of the date of conviction. ”.
Tn our opinion the “ appeal ” referred to in section 5 (1) is one whichconforms to f lic requirements of the Ordinance. The Court of CriminalAppeal Rules, 1940, before the amendment published in Gazette No.9,130 of 4th June, 1943, provided for two separate forms,—Form IV givingnotice of appeal on questions of law and Forni VI for leave to appeal" on tho grounds hereinafter set forth ”. Tt is perfectly clear that inForm IV the questions of law had to bo set out and in Form VI thegrounds for apjilying for leave to appeal. Since the amendment referredto Forms IV and YI have been superseded by Form XXXIII modelledentirely on the English Form XXXIV which as a matter of practice isused in England in place of the statutory Forms IV and VI. Our FormXXXIII is now used whether the notice is one of appeal or of applicationfor leave to appeal or both and space is provided for setting out thogrounds of appeal or application.
Tt is cloar from the rules and the forms that the grounds of an appealor application aro an integral part of a proper notice under section S (I)and there is nothing in the Ordinance to suggest the contrary. Section 1G,on the other hand, indicates that a notice of appeal on law alone mustcontain the grounds. It provides that if it appears to the Registrarthat any notice of an appeal against a conviction, purporting to be on aground of appeal which involves a question of law alone, does not showany substantial ground of appeal, the Registrar .may refer the appeal totho court for summary determination, and, where the case is so referred,the court may, if they consider that the appeal is frivolous or vexatious,and .can be determined without adjourning the same for a full hearing,dismiss tho appeal summarily. This power has been conferred on thobasis that the grounds of appeal must be set out in the notice, forotherwise neither tlic Registrar nor tho court would Ire able to act underthe section.
1 Olh Ret. p. 2J6.
Again, tho Crown lias a right of audience in every appeal. If a point oflaw is taken just before or during tli3 hearing, a miscarriage of justicemay result unless an adjournment is granted to the Crown to meet thenew point. If tho appellants' submission is correct ho may take a newpoint as a matter of right at the adjourned hearing as well and thisprocess may go on indefinitely until every conceh ablo point of lawhas been exhausted. Such a procedure coidfl not possibly have beencontemplated by the Legislature.
If an appellant, as in this case, who has been convicted of murderis allowed by the court to raise fresh grounds of-appeal delivered aftertho appealable time it would in effect he granting an extension of time,for giving notice of appeal. This is prohibited by section S (l) of theOrdinance the second paragraph of which reads,
“ Except in the case of a conviction involving sentence of death,the time within which notice of appeal or notice of an application forleave to appeal may be given may be extended at any time by theCourt of Criminal Appeal. ”
On this point the observations of Lord Reading in the case of Twyutiam 1are apposite. The Lord Chief Justice said,
“ If it were possible to ox tend the time it would bo open to a murderer,having failed in ono appeal, to give notice asking for an extension oftime in order to bring some other matter before the court and notgive tho notice until the last moment, in order to provide for a furtherextension of time. ”
The English Act ami the rules thereunder are in all material respectsidentical with ours. The English authorities especially Rex. v. Cairns -and our own are entirely inconsistent with the construction sought to boplaced by learned Counsel for tho appellant on section 5. A practice hadgrown up in England which we have fob owed of showing indulgenceunder exceptional circumstances. There is nothing in any of the casesto indicate that this indulgence was shown in' the exercise of a judicialdiscretion to give relief to an appellant who has failed to give a notico ofappeal conforming to the requirements of the statute. Unfortunatelyit is st ill being assumed, especially in capital casss, that as a matter ofcourse fresh grounds of appeal would be entertained after the expirationof tho time limit laid down in section S (1). This Court will in futureshow no indulgence and strictly limit argument only to matters of lawraised within the prescribed limit, of fourteen days.
Convictions of the. 1st and 3rd prisoners set aside.
Appeal of the 2nd prisoner dismissed.
1 15 C. A. R. 3S.
1 20 C. A. It. 44.