113-NLR-NLR-V-50-THE-KING-v.-MARTIN-APPUHAMY.pdf
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JAYETILEKE S.P.J.—The King v. Martin A.j>puharmy
[Court of Criminal Appeal]
1949Present: Jayetileke S.P.J. (President], Canekeratne andWindham J.THE KING v. MARTIN APPTJHAMYApplication 73 of 1949S. C. 11—M. C. Matara, 8,442
Court of Criminal Appeal—Right of private defence—Failure of Judge toexplain—Misdirection.
In a, case involving private defence the failure of the judge to explainto the jury in his summing up the law relating to private defence amountsto a misdirection which vitiates the conviction.
Application for leave to appeal against a conviction in a trialbefore a Judge and Jury.
Austin Jayasuriya, for the applicant.
A. Wijemanne, Crown Counsel, for the Crown.
Cur. adv. vult.
May 24, 1949. Jayetileke S.P.J.—
The main point taken at the argument before us was that the learnedJudge had failed to explain to the Jury the law relating to private defence.Counsel for the appellant referred us to the passage in the summing-upwhich dealt with private defence. It reads—
“If a person acts in self-defence and kills another in the properexercise of the right of private defence without exceeding the right,then it is no offence at all, it is justifiable homicide ; but if he exceedsthe right of private defence then the offence is reduced to culpablehomicide not amounting to murder.”
It is clear from this passage that the learned Judge had assumed thatthe Jury understood what is meant by private defence. We are ofopinion that it was the duty of the learned Judge to explain to theJury in his summing-up the law relating to private defence and thathis failure to do so is a non-direction which amounts to a misdirectionwhich vitiates the conviction. We would set aside the conviction andsentence and send the case back for a fresh trial.
Retrial ordered.