091-NLR-NLR-V-47-THE-KING-v.-PEDRICK-SINGHO.pdf
256
The King v. Pedriek Singho.
1948
[Court of Criminal Appear.]
Present:Howard G.J. (President), Cannon and Jayetileke JJ.THE KING v. PEDRICK SINGHO.
Application 73 of 1946.
8. C. 3—M. C. Panadure, 3,620.
Joinder of three charges of murder in one indictment—Offences committed insame transaction—Separate trials not necessary where no prejudice iscaused to accused—Criminal Procedure Code, ss. 179 (1), 180 (1).
Where three charges of murder were joined in one indictment andthe facts of the three murders were so interwoven as to constitute aseries of facts forming one transaction—
Held, that the accused was not prejudiced by the joinder of more thanone charge of murder in the same indictment.
A
PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
Mackenzie Pereira (with him K. A. P. Rajakaruna), for applicant.—Three charges of murder were included in one indictment. The Crownsought to justify the joinder (a) under Section 179, (b) under Section180 of the Criminal Procedure Code.
Section 180 does not apply because neither continuity of action nor com-munity of purpose so as to make the alleged series of acts one transactionhas been established. Joinder should not have been permitted underSection 179 (l)as the accused was prejudiced. Further, joinder of morethan one murder charge in one indictment is undesirable. See King v.Senanayake1, Rex v. Davies2, Rex v. Large3, Emperor v. SherufathAllibuoy *, Rex v. Jones 6.
Cause of death of the deceased Lucihamy has not been satisfactorilyestablished.
In view of the evidence of Guneris in certain particulars, e.g., his beinghandcuffed, &c., the question whether Guneris was an accomplice shouldhave been placed before the Jury.
» (1917) 20 N. L. It. S3.
* (1937) 26 Cr. App. R. 95.
3 (1939) 27 Cr. App. R. 65.
* (1902) 1. L. R. 27 Bombay 135 at p. 138.
8 (1918) 13 Cr. App. R. 6.
The King v. Pedriei Singho.
257
The evidence of Peter with respect to (a) the purpose of thevisit of deceased Oderis, (b) undertaking of deceased Themis toreturn to the estate on a specified date, was irrelevant in that suchevidence relates to facts prior to the transactions which resulted intheir respective deaths and should not have been allowed to be ledin the case. See Rex v. Amolis Perera 1.
Section 178 of Criminal Procedure Code is imperative that every chargeshall bo tried separately except in certain cases. Sections 179 (1) and 180
are the only sections which permit j oinder of charges. Where j oindersthough permissible are not desirable recourse may be had to the EnglishCriminal Procedure under Section 6 of our Criminal Procedure Code.
Counsel also cited Rex v. Southern2, Ar chib old’s Criminal Pleadings,Evidence and Procedure p. 50 (1944 Edition), WoodrofFe and Ameer Alion Evidence, p. 159 {1941 Edition).
H. H. Basnayake, Acting Solicitor-General (with him T. S. Fernando>Croton Counsel), for the Crown—
[The Court intimated that it was satisfied that the joinder of thecharges was permissible under section 179 (1) of the Criminal ProcedureCode, and desired to be addressed only on the question whether prejudicehad been caused to the accused by the joinder.]
Where a Presiding Judge is of opinion that separate charges againstan accused person should be tried separately, it has always been and stillis the practice of the Crown to withdraw from the indictment such chargesas may be necessary in the circumstances of the case. Apart from thatpractice there is no provision in the Criminal Procedure Code empoweringa Judge to order separate trials in a case where only one accused is charged.The position is different where more them one accused is charged—videsection 184 of the Criminal Procedure Code. In the latter case theaccused person “ may be charged and tried together or separately as theCourt thinks fit ”. Sections 179 (1) and 180 (1) confer an option on theCrown to add more than one charge. The omission in these two sectionsto refer to the discretion of the Court to order separate trials is deliberate.Hence the English practice should not be invoked as Bection 6 of theCriminal Procedure Code does not apply in the circumstances.
In The King v. Senanayake 8 the Court definitely held that the joinderof three charges at one trial in respect of offences committed againstthree different persons was in order under section 179 (1).
Where the Presiding Judge has exercised his discretion and refusedto order separate trials, this Court will not interfere unless the PresidingJudge’s discretion has not been exercised judicially.
Further, all three murders in this case were committed in the course ofone transaction. The joinder is therefore permitted under section 180 (1)as well.
Even if there had been separate trials all the material evidence wouldhave been relevant at each trial in view of sections 6 and 8 of the EvidenceOrdinance. Therefore any prejudice that may have been caused to theaccused would have been inevitable. *
* (1927) 28 N. L. R. 481.• (1930) 22 Cr. App. R. 6.
* (1917) 20 N. L. R. 83.
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HOWARD C.J.—The King v. Pedrick Singho.
[Cannon J.—What you say is that prejudice may have been caused,but not undue prejudice ?]
If the evidence was admissible, it is not open to the accused to sayhe has been prejudiced by the admission of relevant evidence.
Counsel then cited the cases of Fauja v. The Emperor 1 and Emperor v.Afsaruddi Haseraddi2 where more than one charge of murder werejoined in one indictment.
The case of King v. Amolis Perera 3 must be deemed to have beenoverruled in view of the Privy Council decision in Narayana Swami v.King Emperor *. In fact, it was so held in a recent case, King v. Mudali-hamy B. Therefore the evidence of Peter in regard to statements madeto him by Odiris and Themis is relevant and admissible.
Mackenzie Perera, in reply.—The Court has the power to orderseparate trials even where only one person is charged ; see King v.Wickramasinghe 8.
At the conclusion of the argument, the Court made order dismissing theapplication but stated that the reasons for the dismissal would be givenlater.
June 10, 1946. Howard C.J.—
The appellant appeals from his conviction on three charges of murder.These three charges were included in one indictment. Before the trialcommenced Counsel for the appellant objected to the joinder of threecharges of murder in one indictment. After hearing argument on bothsides the trial Judge made the following order :—
“ Crown Counsel states that the evidence in the case is so interwoventhat it is difficult to separate the charge of homicide in respect of oneperson from the other charges, principally because the question ofmotive is centred round the man Odiris and the finding of bloodstainsin the shed of the accused and on the hammer cannot be so dissociatedso as to prove that the blood found there was the blood of the firstperson killed, or the second person killed, or of the third person. I wastrying to find whether it was possible to have the trial confined to thecharge of murder of one person, but in these circumstances I thinkI ought to allow the Crown to proceed with the trial on the indictmentframed ”.
On appeal Counsel for the appellant has taken the point that such joinderis not permissible and, if permissible, should not have been allowed inthis particular case as it caused prejudice to the appellant. Referencehas been made to the cases of Rex v. Davis 7 and Rex v. Large 8. In thefirst of these cases Lord Hewart L.C.J. in giving the judgment of theCourt at pages 95 and 96 stated as follows :—
“ In our opinion it is not accurate to say that the joinder of thetwo counts in this case was fatal, and,'indeed, when one looks at the I II
I(1919) 20 Criminal Law Journal of India 4 (1939) 1 All England Reporter 396.
353.«(1946)47N. L. R. 139.
* (1939)40CriminalLaw Journal of India • (1934) 36 N. L, R. 135.
290.7(1937)26Criminal Appeal Reports95.
II(1927)28N. L,R.481.*(1939)27Criminal Appeal Reports65.
HOWARD C.J.—The King v. Patrick Singho.
209
facts of the two charges, it is apparent that together they may well beregarded as substantially one transaction. If there had been twoseparate indictments it would have been easy and proper for theprosecution on the trial of one indictment only to tender evidencerelating to the whole of the matter. None the less I repeat thatin the opinion of the Court the joinder of two murders in one indict-ment is undesirable. The matter is one for judicial discretion, andthe fact that there were two counts in the indictment in the presentcase does not in the least invalidate the conviction
In the second case it was held that no other count ought to he includedin an indictment for manslaughter. It will be observed that, althoughthe practice of joining more than one charge of murder in the sameindictment was deprecated, it was not held to be illegal. MoreoverLord He wart stated that it was one for judicial discretion. In thatparticular case the two charges together were regarded by the LordChief Justice as substantially one transaction and he stated that, if therehad been two separate indictments, it would have been easy and properfor the prosecution on the trial of one indictment only to tender evidencerelating to the whole matter. In our opinion the principle formulatedby Lord Hewart applies to the present case. The practice of includingmore than one charge in an indictment for murder is not a desirable one.If one charge only had been included the Crown might, as the three chargeswere substantially one transaction, have tendered evidence relating tothe whole matter. Section 179 (1) of the Criminal Procedure Codehowever permits the joinder on the ground that the offences wereof the same kind and had been committed by the same person within aspace of twelve months and were not more than three in number.Authority for this is to be'found in the case of King v. Senanayake *.The corresponding section in the Indian Criminal Procedure Code, section234, is worded similarly to section 179 (1) of our Code. In Emperor v.Afsaruddi Haseraddi 2 it was held that two charges of murder may belegally tried together under section 234 of the Criminal Procedure Code.Fauja v. Emperor 8 is a decision to the same effect. Section 180 (1) of theCriminal Procedure Code also permits the joinder on the ground that theoffence constituted one series of acts so connected together as to formthe same transaction. We think that these murders did form onetransaction.
The next question that arises is whether the appellant was in factprejudiced by the joinder of these three charges and the learned Judgeshould have directed that only one charge should be included in theindictment. It has been contended by the Solicitor-General that aJudge has no power to direct separate trials. We cannot accept thatcontention. In the King v. Senanayake (supra) it was held by WoodRenton C.J. that it is always open to the Court, on the application of anaccused person against whom section 179 (1) of the Criminal ProcedureCode is being applied, to order that the trials should be separate, andany possible hardship may be obviated in that way. The use of the1 (1917) 20 N. L. R. 83.
8 (1939) 40 Criminal Law Journal of India 1939 290.
8 (1919) 20 Criminal Law Journal of India 353.
260
HOWARD CJ.—The King v. JPedriek Singho.
word “may” and not “should” in both sections 179 (1) and 180 (1)is an indication that such a discretionary power exists. The power of aJudge to order separate trials and the exercise of his discretion in sodoing was also considered in the case of the King v. Wickremasinghe l.In his judgment in that case Maartensz J. at p. 136 stated as follows :—
“ It was held by Tennis A.C.J. and Wood Renton C.J. in the casesreferred to that it was always open to the Courts on the application ofan accused person to direct separate trials. But I do not think separatetrials should be ordered merely because of the possibility that a Judgeor Jury might suspect each of them must be true. Such an argumentcould be addressed to this Court in every case in which three chargesare combined at one trial in pursuance of the provisions of section 179of the Code. And there would be no purpose in retaining the sectionin the Statute Book. In my judgment there must be more substantialgrounds for directing separate trials than that contained in theargument I have dealt with. I have read through the depositionsand I am of opinion that accused will not be prejudiced by the threeoharges being tried together ”.
In the present case the facts of the three murders were so interwovenas to constitute a series of facts forming one transaction. If the trialshad been separate, evidence of the murders not forming part of the indict-ment would have been admissible. It is true that the Jury might suspecteach of them to be true, but that as pointed out by Maartensz J. in TheKing v. Wickremasinghe (supra) is not a substantial reason for orderingseparate trials. The fact that the accused person is charged with morethan one murder is certainly a factor which will be present to the mindsof the Jury. But as that evidence was admissible, it cannot be saidthat the accused was prejudiced.
Various other points have been raised by Mr. Mackenzie Pereira onbehalf of the appellant. He has contended that the Crown have notestablished the cause of death in the case of the deceased, Liucihamy.We think that the finding of the canvas tied round the neck of the deceasedcoupled with the doctor’s evidence establishes the cause of death.
Mr. Pereira has also maintained that the attention of the Jury shouldhave been invited to the question as to whether the witness Guneris wasan accomplice. Inasmuch as there was no evidence that Guneris was anaccomplice, we think that this contention is without substance.
Mr. Pereira has also argued that the learned Judge ought not to haveallowed the witness Peter to depose to (a) the purpose of the visit of thedeceased Oderis, (6) the undertaking of the deceased Themis to returnto the witness on a specified date. Both relate to facts prior to thetransaction which resulted in their respective deaths. Accordinglyit is submitted that the direction to the Jury on this aspect of the casecannot be supported. In this connection Mr. Pereira referred to Rex v.Amolis Perera 2. Having regard, however, to the decision of the PrivyCouncil in Pakala Narayana Stoami v. King Emperor°, the decision in
1 (193d) 36 N. L. R. 135.2 (1927) 28 N. L. R. 481.
• (1939) 1 AU England Reports 396.
HOWARD OJ.—The King v. W. F. Fernando.
261
Amoliq Per era, can no longer be regarded as good law. The evidenceof Peter with regard to the purpose of the movements of Oderis andThemis was therefore admissible.
No point of substance arises in regard to the other questions raised byMr. Pereira.
For the reasons I have given the application for leave to appeal isdismissed.
Application dismissed.