117-NLR-NLR-V-51-THE-KING-v.-DHARMASENA.pdf
The King u. Dharmasena
481
[In the Pbivy Council]
1950 Present: Lord Porter, Lord Oaksey, Lord Radcliffe,Sir John Beaomont and Sir Lionel Leaeh
THE KING v. DHAEMASENA
Privy Council Appeal No. 34 of 3949
C. C. A. Appeals 30-11 of 1949
Privy Council—Criminal. Procedure Code—Sections 167 [4), 180, 184—-Joinder ofchargee and accused person*—Applicability of sections 180 and 184—Crucial timeis time of accusation and not of conclusion of trial—Indictment—Significance ofsection 167 (4)—Conspiracy—Penal Code, section 113b—Two accused—One alonecannot be convicted—Quashing of a conviction—Its effect—Court of CriminalAppeal Ordinance, No. 23 of 1938—Section 5 (2)—Proviso to section 5 (I)—Miscarriage of justice—Guiding rule—Privy Council—Principles for interferencein a criminal case.
In regard to joinder of charges and of accused persons as providedby sections 180 and 184 of the Criminal Procedure Code, the at whichit falls to be determined whether the condition that the offences alleged hadboon committed in the course of tho same transaction has boon fulfilled is thetime when the accusation is made and not when tho trial is concluded and theresult known.
Wheroan indictment charged an accused person with committing murderin the course of a conspiracy, hut referred to section 296 alono of tho PenalCode and contained no roforence to section 1I3b—
Held, that the accused could be convictod of murder even though therewas no proof of conspiracy. Vide section 16? (4) of the Criminal ProcedureCode.
A quashed conviction in section 5 (2) of the Court of Criminal AppealOrdinance,No. 23 of 193$, does not acquit the Appellant of tho crime charged.It merely makes the previous conviction abortive. If it is intended to directa judgment of acquittal to be entered it must be done in terms. If this stepis not taken, a new trial may be ordered though the conviction has beenquashed.
<iv) If two persons are accused of a criminal conspiracy and convicted andon Appeal one is sent for retrial, the other should be sent at the same timefornlflo upon that charge so that both may bo convictod or acquitted
together.
The proper teat to determine whether there ha9 been no substantialmiscarriage of justice within the meaning of the proviso to section 5 (1) of the Courtof Criminal Appeal Ordinance is whether a reasonable jury, after being properlydirected, would, on the evidence properly admissible, without doubt convict.
In an appeal to His Majesty in Council in a criminal case the appellantmust establish that there is something which, in the particular case, depriveshim of the substance of fair total and the protection of tote law, or which, ingeneral, tends to divert the due and orderly administration of the law into anew course, which may be drawn into an evil precedent in future. Misdirection,as such, even irregularity, as such, will not suffice.
LI
1J. N. A 99789-1,049 (8/50)
482
LORD PORTER—The King v. Dharmasew
^^.PPEAL, by special leave, from a judgment of the Court of CriminalAppeal. The judgment of the Court of Criminal Appeal is reported in(1949) 50 N. L. R. 505.
Granville Sharp, K.C., with Dingle Foot, for the accused appellant.
Frank Gahan, with J. G. Le Quesne, for the Crown.
In the application for special leave to appo&l—.
A. B. Perera, for the petitioner.
J. G. Le Quesne, for the Crown.
June 14,1950. [Delivered by Loud Portbk]—
This is an appeal, by spooial leave, from a judgment of the Court ofCriminal Appeal of Ceylon, dated the 16th March, 1940, dismissing theappellant’s appeal against this conviction on tho 3rd Fobruary, 1949, attho Sessions of tho Supremo Court of Ceylon sitting at Colombo, on twocharges, viz., conspiracy to commit murder and murder.
The appellant was chargod and tried together with one Beatrice Maudode Silva Seneviratne upon an indictment dated the 18th Juno, 1948,containing three counts in tho following terms:—
That between the 1st and 8th day of Novoml>or, 1947, at Nugogoda
and Kotahena in the district of Colombo, you did agree tocommit or act together with a common purpose for or in com-mitting an offence to wit the murder of one GovipolagodageDionysius de Silva Seneviratne of No. 107, College Street,Kotahena, and that you have thereby committed the offenceof conspiracy to commit murder in consequent!© of whichconspiracy the said offence of murder was committed; andthat you havo thereby committed an offence punishable undersection 113d read with sections 296 and 102 of the Penal Code.
That on or about 7th November, 1947, at Kotahena in the district
of Colombo, and in the course of the same transaction as setout in Count (1) above, you Kannangara Aratchigo Dharxnasenaalias Baas did commit murder by causing the death of the saidGovipolagodage Dionysius de Silva Seneviratne; and that youhave thereby committed an offence punishable under section296 of the Penal Code.
That between the dates mentioned in Count (1) above, you Beatrice
Maude de Silva Seneviratne did abot the said KannangaraAratohige Dharmasena alias Baas, the first accused, in thecommission of the offence set out in Count (2) above which saidoffence was committed in consoquenco of such abetment andthat you have thereby committed an offence punishable undersection 296 read with section 102 of the Penal Code.
LORD PORTER—The King v. Dharmaaena483
Govipolagodage Dionysius de Silva Seneviratne who undoubtedly wasmurdered by some one was the husband of the second accused.
Before the trial opened, counsel for each of the accused made an appli-cation that their respective clients should be tried separately, claiming thatthey would be seriously prejudiced if tried together. The application,however, was refused.
As a result of this refusal the two accused persons were tried togetherboth upon the count for conspiracy and upon the two separate individualcounts.'
The justification for this action is to be found in sections ISO and 184of the Criminal Procedure Code of Ceylon. Their terms are as follows:—
“ Section 180. (1) If in one series of acts so connected together asto form the same transaction more offences than one are committedby the same person he may bo charged with and tried at one trialfor every- such offence, and in trials before the Supreme Court or aDistrict Court such charges may be included in one and the sameindictment.
If the acts alleged constitute an offence falling within two ormore separate definitions of any law in force for the time being bywhich, offences are defined or punished the person accused of thornmay be charged with and tried at one trial for each of such offences,and in trials before the Supreme Court or a District Court such chargosmay be included in one and the same indictment.
If sovoral acts, of which one or more than one would by itselfor themselves constitute an offence, constitute when combined adifferent offence the person accusod of them may be charged withand triod at one trial for the offence constituted by such acts whencombined and for any offence constituted by any one or more ofsuoh acts, and in trials before the Supreme Court or a District Courtsuch charges may be included in one and the same indictment.
Nothing contained in this section shall affect section 67 of thePenal Code. ”
“ Section 184. When more persons than one are accused of jointlycommitting the same offence or of different offences committed in thesame transaction or when one person is accused of committing anyoffence and another of abetment of or attempt to commit such offence,they may be charged and tried together or separately as the courtthinks fib; and the provisions contained in the former part of thisChapter shall apply to all such charges."
It was at one time contended on behalf of the appellant that the refusalby the learned judge to separate the trials of the two accused waserroneous in law, gravely prejudicial to the appellant and amounted to asubstantial miscarriage of justice. It was, however, afterwards concededthat this contention could not prevail in face of the decision in BabulalChoukhani v. The King-Emperor1 where their Lordships held that thetime at which it falls to be determined whether the conditions that the1 L. It. 65 I.A. 168.
484
LOK1) POKTER—Tht King v. DKarmasena
offenoes alleged bad been committed in the course of the same transactionhas been fulfilled so as to enable persons accused of different offences tobe charged and tried together as provided by section 239 of the IndianCode of Criminal Procedure (which is identical with section 184 of theCeylon Aot) is the time when the accusation is made and not when thetrial is ooncluded and the result known. Tho charges, it was held, haveto be framed for better or worse at an early stage of the proceedings andwould be paradoxical if it could not be determined until the end of thetrial whether it was legal or illegal. It was for the judge bearing theseconsiderations in mind to use his discretion.
In the light of this decision the appellant’s advisers were plainly rightin not persisting in the contention that the two accused were improperlytried together on the three charges framed.
It was however further urged that the indictment in fact charged onlytho crime of conspiracy and merely added murder as part of the conspiracybut not as a separate charge.
This result was said to follow from the insertion in Count (2) of thewords 11 in tho course of tho same transaction as set out in Count (1)Their Lordships do not find themselves able to accept this view. In theiropinion the addition of these words does not limit the charge preferredto an allegation of conspiracy only ; they are necessary in order to showthat the three offences alleged wero committed in the course of the sametransaction. Nevertheless they still leave a separate and independentcharge of murder by the appellant. This view is supported by a referenceto section 167 (4) of the Code which enacts that<( Hie law and section ofthe law under which the offence said to have been committed is punishableshall bo mentioned in the charge.” If then Count (2) charged or intendedto charge conspiracy it must needs contain a reference to section 113bof the Penal Code whereas section 296 which prescribes the punishmentfor murder is alone referred to. So far, therefore, as this technicalobjection is concerned their Lordships reject the appellant’s argument.
The trial took place before a judge and jury. In his summing-up thelearned judge directed the jury upon the charges of conspiracy and ofmurder but told them that the accusation of abetment was so involvedwith that of conspiracy that unless they found the conspiracy proved theyshould acquit Mrs. Seneviratne of abetment also. The jury in theirverdict found both the accused guilty of conspiracy to murder and theappellant guilty of murder but in accordance with the judge’s directionmade no finding as to abetment and that charge may now be disregarded.
From this finding both appealed to tho Court of Criminal Appoal andthat court quashed the conviction of Mrs. Senoviratne and granted a newtrial in her case undor the power contained in section 5 (2) of the CriminalAppeal Ordinance of Ceylon, No. 23 of 1938. The exact method to beadopted in exercising the power given in this section is not very clearbut it seems that the correct prooedure under the Ordinance is to quashthe conviction. A quashed conviction however docs not acquit theappellant of the orime charged. It merely makes the previous convictionabortive. If it is intended to direct a judgment of acquittal to be entered
LORD PORTER—The King v. Dharmaaena
485
it must be done in terms. If this step is not taken, a new trial may beordered though the conviction has been quashed, as has been done in this
Whilst the Court of Criminal Appeal so treated the case of Mrs.Senoviratne, they dismissed both appeals by the appellant saying thateven without the evidence of one witness, viz., Alice Nona, whosetestimony will be referred to later, there was ample evidence to establishthe guilt of the appellant.
As a result of the order of the Court of Criminal Appeal Mrs. Seneviratnewas retried and at the second trial Alice Nona, who was an importantif not vital witness for the prosecution, proved so unreliable that thejury stopped the case on the invitation of the learned judge who triedit and found the accused woman not guilty. After this verdict theposition was that of two conspirators one had been found guilty by onejury and the other acquitted by another.
In their Lordships’ opinion this is an impossible result where conspiracyis concerned. It is well-established law that if two persons are accusedof conspiracy and one is acquitted the other must also escape condemna-tion. Two at least are required to commit the crime of conspiracy ; onealone cannot do so. In the present case the only conspirators suggestedwere the two acoused persons and there were no others known or unknownwho might have participated in the crime. It is true that one conspiratormay bo tried and oonvicted in the absenoe of his companions in crime,i?. v. Ah-eamt1, but where two have been tried together so thatthe only possible verdict is either that both are or neither is guilty, anorder for the retrial of one makes it imperative that the other shouldalso be retried. In their Lordships’ opinion therefore if two persons areaccused of a criminal conspiracy and convicted and on appeal one canbe and is sent for retrial, the other should be sent at the same time forretrial also upon that charge so that both may be convictod or acquittedtogether. In the present case in as much as Mrs. Senoviratne has beenfound not guilty of conspiracy, their Lordships think the proper courseis to treat her acquittal as a disposal of the charge of conspiracy and asinvolving the acquittal of the appellant also on that charge. The appealagainst conviction on that count should accordingly be allowed.
But though the appellant’s conviction on the charge of conspiracyshould in their Lordships' view have been quashed together with that ofhis alleged co-conspirator and though ho, like her, should have been sentfor re-trial and must now be acquitted, yet there remains the questionwhether he should also have been acquitted of the charge ofmurder.
A number of grounds on which it is contended that the appellantsuffered a miscarriage of justico have boon put forward but in substancethey may now be reduced to two: (1) that the jury must have beenunduly prejudiced against him by the questions put to tho other accused,and (2) that if it had not been so prejudiced the jury might well haveacquitted him. Undoubtedly there were irregularities in the trial for1 6 Cox 6.
486LORD PORTER—The Kingv. Dham.t.rrmt.
conspiracy which the Court of Crimmal Appeal in Ceylon held to havebeen unduly prejudicial to the accused woman. In their judgment theysay :—
‘‘ It is, of course, always proper fora Judge—he has the power auditis his duty at times—to put such additional questions to the witnessesas seem to him deairable to elicit the truth. The part wliich a Judgeought to tako while witnesses are giving their evidence must, of course,rest with his discretion. But with the utmost respect to the Judge, itwas, I think, unfortunate that he took so largo a part in examining theappellant. Though he was ondoavouring to ascertain the truth, in themanner which at the moment seemed to him most convenient, therewas a tendency to press the appollant on more than one occasion. Theimportance and power of his office, and the theory and rule requiringimpartial conduct on his part, make his slightest action of greatweight with the jury. If he takes upon himself the burden of thecross-examination of the accused, when the government is representedby competent counsel, and conducts the examination in a mannerhostile to the accused and suggesting that he is satisfied of the guilt ofthe accused, as some of the questions do, the impression would probablybe produced on the minds of the jury that the Judge was of the fixedopinion that the accused was guilty and should bo convicted. Thiswould not be fair to the accused, for she is entitled to the benefitof the presumption of innoconce by both Judge and jury till horguilt is proved. If the jury ia inadvertently led to boliove that theJudge dooa not regard that presumption, they may also disregard it. ”
Strictly of course this criticism is concerned with the case againstMrs. Scneviratne alone, but a finding against hor in a case of conspiracyis bound to influence to some extent the attitude of the jury towards theappellant..
Moreover the evidence of Alice Nona purported to implicate him aswell as her in the alleged conspiracy. Bearing these circumstances inmind their Lordships have to decide whether the appellant’s convictionfor murder should or should not be affirmed and to determine the prin-ciples which should guide their decision. The principles upon which theBoard must be guided in reaching a conclusion upon this matter are thatthey must keep in mind the provisions of section 5 (1) of the Ordinanceof 1938 which declares:—
“ The Court of Criminal Appeal on any such appeal against con-viction shall allow’ the appeal if they think that the verdict of thejury should be sot aside on the ground that it is unreasonable orcannot bo supported having regard to the evidence, or that thejudgment of the court beforo which the appellant was convictedshould bo set aside on the ground of a wrong decision of any questionof law or that on any ground there was a miscarriage of justice, andin any other case shall dismiss the appeal:
Provided that the court may, notwithstanding that they are ofopinion that the point rat6ed in the appeal might be decided in favour
LOKL) rumtiK
>!W
— ts.‘ii'i i’, ufiarm:is?na
of the appellant, dismiss the appeal if they consider that no substantialmiscarriago of justice has actually occurred.”and must bear in mind that they are not themselves a Court of CriminalAppeal.
In determining what amounts to a serious miscarriage of justice theirLordships have the guidance of English decisions upon wording whichis the same os and is obviously copied from section 4 (1) of the EnglishAct of 1907.
For the present purpose it is enough to refer to E. v. Daddy1which was approved in the House of Lords in Stirland v. Director ofPublic Prosecutions 2. Viscount Simon’s words in the latter case sum upthe matter. He says :—
“ Apart altogether from the impeached questions (which theCommon Sorjeant in his summing-up advised the jury entirely todisregard), thore was an overwhelming case proved against theappellant. When the transcript is examined it is evident that noreasonable jury, after a proper summing up, could have failed toconvict the appellant on tho rest of the evidence to which no objectioncould be taken. There was, therefore, no miscarriage of justice, andthis is tho proper test to determine whether the proviso to section 4,anb-seotion 1 of the Criminal Appeal Act, 1907, should be applied.The passage in Woolmington v. Director of Public Prosecutions {1935)A.C. 462, 482, 483 whero Viscount Sankey L.C. observed that in thatcase, if the jury had boen properly directed it could not be affirmed thatthey would have 4 inevitably ’ come to the same conclusion should bounderstood as applying this test. A perverse jury might conceivablyannounce a verdict of acquittal in the teeth of all the evidence, butthe provision that tho Court of Criminal Appeal may dismiss theappeal if they consider that no substantial miscarriage of justice hasactually occurred in convicting tho accused assumes a situation wherea reasonable jury, after being properly directed, would, on the evidenceproperly admissible, without doubt convict. That assumption, asthe Court of Criminal Appeal intimated, may be safely made in thepresent case. The Court of Criminal Appeal has recently in R. v.Haddy (1944) 1 K. B. 442 correctly interpreted section 4, sub-section 1of the Criminal Appeal Act and the observation above quoted fromWoolmington's case in exactly this sense.”
What then their Lordships have to determine is whether a reasonablejury properly directed would on the evidence adduced have found theappellant guilty of murder.
That there is ample and more than ample evidence upon which a jurycould do so is iiT»rio«ibtwi.
ooxne one murdered Covjpolagodage Sencviratne in his own housebetwoon 9 o’clock and 9.30 on the 7th November, 1947. The post-mortemrevealed that he had died as the result of a violent attack with a sharpinstrument with which he had been struck with force a number of timesand death was due to haemorrhago and shock from multiple incised
wounds in tho neck.
' (1944) 1 K. B. 442.
(1944) A. t 315.
48$
LORD PORTER—The King v. i'!–ttrm<ucna
The evidonco against the appellant on this part of the case is perhapsmost conveniently set out in tabulated form.
Three witnesses who had ample opportunities of observing himidentified him as having been near the spot on tho day in question at thetime when the murder must have takon place and said that he had come,from the back oompound of the dead man’s house.
According to thoir ovidenc© he had covered his head with a sarongbelonging to the deceasod’s son and was carrying a handbag and knife.When challenged he threatened one of these witnesses with the knife.
Another of these witnesses tried to stop him but he escaped, droppedthe knife and handbag in a rampe bush and throwing off the sarong rantowards Alwis Street. Tho knife and handbag were afterwards found bythe police in this spot.
A fourth witness who was repairing the roof of a house in AlwisPlace saw the appellant run under the portico of the house where he wasworking and force his way through the zino sheets of a boundary fence.He afterwards found a ooat on the ground below tho spot at which hewas working. This witness like the others identified the appellant at anidentification parade held before the learned magistrate. It is true thatone witness who said he saw some one running along Alwis Place failedto identify the appellant as the runner but that failure is of little im-portance in the face of the confident identification of the other four.
The knife, bag, sarong and coat were all imbued with human bloodand to the knife human hair of the colour and texture of the dead manwas found adhering.
About 3 to 3.30 on the afternoon of the 7th November the appellantcame to the shop at Nugegoda which is occupied by a carpenter and bya smith. He brought with him a block of wood, a bolt of iron with a nutunderneath and a piece of iron which had been flattened for a knife. Healso brought two washers and a nut. He first asked the carpenter tomake him a herb cutter which he required that day. The carpenterreferred him to the blacksmith who rejected the knife as unsuitablebecause it was of iron whereas it should have been of steel, and the woodas having marks upon it made by the cutting knife. The blacksmith wasunable to finish the work that day, but finished the cutter next morningafter fitting to it a fresh knife and a fresh piece of wood. The appellanthowever had been arrested meanwhile and the knife and its accompani-ments were handed over to the police.
The articles from the compound at the deceased’s house and the otherarticles mentioned above were sent to the government analyst and thoseincluded the knife recovered from the rampe bush and the bolt whichthe appellant had brought to the blacksmith’s shop. At the trial thiswitness was asked to re-construct the herb cutter with the knife whichhad been recovered instead of that made by the blacksmith. Accordingto his evidence the bolt would leave two roughly circular marks on eitherside of any piece of metal attached to it and the recovered knife had infact two circular marks, one on each side, which correspond in shape andarea to the two marks that would be produced by the inner side of thebolt. From their appearance the inference therefore was justified that
hOKD POHTifiR—The King v. t)hanna$ena
489
the recovered knife must have been attached to this bolt for some time.The appellant urges in answer that another knife had been found lyingon the table on his premises to which the operating knife of a herbcutter would be attached and his wife stated that the knife so found wasthe only one which they possessed and was that actually in use by theappellant and further that some difficulty was experienced in fixing theknife to the bolt.
The first of these points is disposed of by the evidence of the govern-ment analyst who says in terras that that knife could never have beenfitted to the herb cutter and the second is only true to the extent thatthere was a small projection half way down the thread of the bolt whichnecessitated the use of a little force if the screw was to go beyond it—an eventuality which was by no means certain. But in any case thewitness had no doubt that the knife used to kill the deceased fitted intothe bolt which the accused took to the blacksmith.
The appellant was examined by a doctor on the day on which themurder was committed and was found to have an oblique incised woundover the inner prominence of his right ankle and an abrasion. Theseinjuries could not have been caused by a dog bite as was suggested onbehalf of the appellant or by a knife but were consistent with injuriescaused by the appellant drawing his leg upward when passing througha fence constructed of galvanized iron or zinc sheets with sharp edges.
On the morning of the murder the appellant borrowed an umbrellafrom a neighbour between the hours of 7.30 and 8 a.m. The umbrellawas never returned but according to the police evidence an umbrella wasfound by 1.30 on the day of the murder leaning against the wall near apool of blood and was identified as his by the neighbour. The onlyanswer made on behalf of the accused was an assertion by his wifethat the police had conspired to entrap her husband and in order tobring the conspiracy to a successful conclusion had removed the umbrellafrom his house when they came to arrest him. The lady’s evidence how-ever as to the knife and on other matters as appears below is inconsistentwith the established evidence and could not be accepted.
Finally the accused man did not himself give evidence at the trial asto his movements on the day in question though his wife was calledon his behalf and testified that with the exception of a brief andimmaterial interval he was at home all day. This evidence is not only inconflict with that given by the four witnesses referred to above but alsowith that of the carpenter and blacksmith who spoke to his having visitedtfieiu fcko* Afternoon.
On this evidence it is plain that there was ample material oil which ajury could convict the appellant.
But it is said that as a result of the joint trial of the two accused hewas seriously prejudiced in the eyes of the jury by the undue interventionof the learned commissioner in the examination of Mrs. Seneviratne andhis dramatic reconstruction of the stops taken which led up to the crimeand w'hich the evidence does not warrant. In particular it was pointedout that unless there was a conspiracy, no motive for the murder bythe accused of a personal friend had been established; that in the
1*J. N. A 9073d (8/60)
490
LORD PORTER—The King v. Dhartnusena
summing up the presence of the accused on the premises on the fatalday had been assumed ; that the evidence of Alice Nona could not bo,and at the second trial was not, accepted and that the suggestion that thecoat and sandals found on the spot were those of the appellant wasunwarranted.
Though, as the Court of Criininul Appeal have found and their Lord-ships have accepted, there were irregularities in the trial on the conspiracycharge, tho suraming-up against this prisoner is plainly separated fromthe joint charge. Moreover though short, it impresses upon the jury thenecessity for the prosecution to prove their case. It puts fully and care-fully before them the evidence for the appellant and calls their attentionto and carefully reiterates his wife’s evidence on his behalf.
Ho hod already warned them that Alice Nona might be a conspiratorand on this part of tho case he places no reliance upon, and indeed doesnot base any argument upon, her evidence.
So too the coat and sandals are not suggested as incriminating theaccused man. It is true that the jury wero not warned in terms thatwithout a finding of conspiracy no motive for the crime was proved, butmotive is only an element and is not a vital element in the case wherethe evidence of the commission of the crime is clear. Moreover whendealing with the second count of the indictment, tho learned judgenowhere .suggests that any motive had been shown to exist; the factsgiven in evidence alone are relied upon. Furthermore the appeal withwhich their Lordships arc concerned is not brought from the trial byjudge and jury alone. Intervening is the judgment of the Court ofCriminal Appeal who confirmed the verdict of the jury. “ Even withoutthe evidence of Alice Nona ”, they say “ there was ample evidence inthe case to establish the guilt of the first accused With this observationtheir Lordships agree and notw ithstanding such irregularities as occurredin the trial for conspiracy, they arc not jversuaded that any substantialmiscarriage of justice has occurred. Rather they think that a reasonablejury properly directed would have found the appellant guilty of the crimeof murder. It may be useful to reiterate what was said as to the functionsof the Board and the principles upon which their Lordships act, thelanguage used in Renouf v. A .0. for Jersey'. The wording is :—
“ It. may be useful to repeat that the Board has always treatedapplications for leave to appeal, and the hearing of criminal appealsso admitted, as being upon the same footing. As Lord Sumner, givingthe judgment of the Board in Ibrahim v. The King in 1914 A.C. 599remarked at page 614 : ‘ The Board cannot give leave to appeal wherethe grounds suggested could not sustain the appeal itself; and, con-versely, it cannot allow an appeal on grounds that would not havesufficed for the grant of permission to bring it.’ He added, what ismaterial in the present case : ‘ Misdirection, as such, even irregularityas such, will not suffice. There must be something which, in theparticular case, deprives the accused of the substance of fair trialand the protection of the law, or which, in general, tends to divertthe due and orderly administration of the law into a new course,which may be drawn into an evil precedent in future.’ ”
1 [1036) A. C. 445 at p. 475.
401
SIR JOHN BEAUMONT—Xrvlarajan Chcttiar t>. Tcnnekoon
Their Lordships may be permitted lo say that the appellant's ease wasargued with great force and ability. Nevertheless they are not persuadedthat any ground for interference with the conviction has been establishedand accordingly they have, as they indicated at the end of the hearing,humbly advised His Majesty that the appeal should be dismissed.
♦
Appeal dismissed.