THE KING v. WIJEYERATNAM

002-NLR-NLR-V-43-THE-KING-v.-WIJEYERATNAM.pdf


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The King v. Wijeyeratnam.
[Court of Criminal Appeal.}
1941 Present: Moseley S.P.J., Keuneman and Wijeyewardene JJ.
THE KING v. WIJEYERATNAM.
15—M. C. Mallakam, 21,265.
Evidence—Charge of murder of a named person—Evidence of injuries on otherpersons murdered at same time—Relevance—Meaning of words “ withoutany excuse ” in clause 4 of Penal Code, s. 294—Duty of Judge to givedirection—Proof of affidavit.
In a charge of murder the cross-examination’of the witnesses for theprosecution indicated that the defence relied on the theory that theinjuries sustained by the deceased person (S) and others were inflicted ina hand-to-hand conflict.
The crown led evidence to prove that fatal injuries were caused notonly to (S) but also to two others, by gunshot wounds which could nothave been inflicted at short range.
Held, that the evidence was relevant.
The King v. Mendias (42 N. L. R. 244) distinguished.
Where an affidavit which was alleged to have been sworn by theaccused and which was put in evidence by the Crown was not provedaccording to law and where its submission gravely prejudiced the casefor the accused,—
Held, that the conviction was bad.
Obiter, where the Judge puts to the jury clause 4 of section 294 of thePenal Code a precise direction is necessary as to the nature of the circum-stances, which might come within the meaning of the words “withoutany excuse ” in the clause, and which might reduce the offence frommurder to culpable homicide not amounting to murder.
A
PPEAL, from a conviction by a Judge and jury at the first NorthernCircuit.
G. G. Ponnambalam (with him S'. N. Rajaratnam, S. Saravanamuttu andG. G. Hoover), for the accused, appellant.—The evidence relating to thedeath of two persons other than the deceased, Sangarapillai, and toinjuries to other persons was improperly admitted, and caused seriousprejudice. Such evidence would have been admissible only if the defencewas one of mistake or accident. No such defence was either raised orforeshadowed. See The King v. Mendias '; Phipson on Evidence (7th ed.)p. 68; R. v. Bernard "; 1$. v. McGrath & McKevitt"; R. v. Rodley'.
In the summing-up the attention of the jury was drawn to clause 4 ofsection 294 of the Penal Code. No direction, however, was given inregard to the meaning of the words “ without any excuse The onuswas on the Crown to prove that there was no excuse. See Ratanlal’s Lawof Crimes (14th ed., p. 720 et seq.) and the cases referred to there.
The Crown produced in rebuttal an affidavit which was alleged to havebeen sworn by the appellant in connection with an application for bail tothe Supreme Court. There was no definite proof, however, that theperson who made the affidavit was the appellant- The document was
1 {1941) 42 X. L. R. >44.* {1881) 14 Cox's C G. S98.
1 1 F. and F . 240.1 L. It. (1913) 3 K. B. 469 at 473.
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MOSELEY J.—The King v. Wijeyeratnam.
adversely commented upon by the presiding Judge and thus gravelyprejudiced the case against the appellant. An affidavit cannot be usedas evidence even against him by whom it is sworn without proof of thehandwriting—Barnes v. Parker'. The ordinary rule regarding proof of adocument would apply to proof of an affidavit also. It was held in Rex v.Kadirgamen*, that even a deposition should be formally produced. Theaffidavit produced in this case cannot fall under section 80 of the Evidence.Ordinance. If was not sworn before a person duly authorised undersection 428 (a) of the Criminal Procedure Code. No general rules concern-ing affidavits have yet been passed under section 49 of the CourtsOrdinance. Nor was the affidavit sworn before a District Judge orMagistrate. The document was, therefore, not a record of evidencegiven in a judicial proceeding. See also A. I. R. 1939 Cal. 657 andSarkar on Evidence (6th ed.) p. 630.
Nihal Gunesekera, C.C. (with him S. Alles), for the Crown.—Thie evidenceregarding the death of, and the injuries on, other persons than the deceased.Sangarapillai was led solely to rebut the defence that there was a hand-to-hand fight at close quarters between the two factions. It was, therefore,relevant and admissible—John Makin et al. v. The Attorney-General forNew South Wales’; W. H. Ball & E. L. Ball'; J. E. W. Chitson’;Gerald Kennaway °.
The Judge’s failure to explain the meaning of the words “ without anyexcuse ” in section 294, clause 4, did not cause any prejudice. Theverdict would not have been different even if the words had beenexplained. There was no substantial miscarriage of justice, and theproviso to section 5 (1) of the Court of Criminal Appeal Ordinance wouldbe applicable. The onus was on the accused to prove the excuse, if therewas any—Perkins v. Dewadasan
The question about the statement made in the affidavit was admissiblenot under section 80 but under section 145 of the Evidence Ordinance.The authenticity of the affidavit was never challenged by the appellant.The Court of Criminal Appeal will not give effect to a purely technicalpoint, which might have been taken at the trial—John Metz’; WilliamJackson “; Andrew Thomson “.
November 3, 1941. Moseley J.—
The appellant, together with six others, was charged at the JaffnaAssizes on an indictment alleging that being members of an unlawfulassembly, the common object of which was to commit murder, they didin prosecution of the said common object commit murder by causing thedeath of one Ambalam Sangarapillai; alternatively, that they committedmurder by causing the death of the said Ambalam 'Sangarapillai. Theappellant, at the trial, was convicted on the second count, his co-accusedbeing acquitted on both counts. He now applies for leave to appealagainst the conviction upon grounds which involve questions of fact, and
Cur. adv. vult.
' USGO) 15 L. T. 218.
-• (1940) 41 X. I.. R. 534.
8 (1894) .4. C. 57 at 65.
5 Cr. App. R. 238 at 247.
2 Ct. App. R. 325.
• 12 Cr. App. R. 147.
– (1938) 39 N. L. R. 337.
8 11 Ct. App. R. 164.8 14 Cr. App. R. 41.
10 9 Cr. App. R. 252.
MOSELEY J.—The King v. "Wiieyeratnam.27
appeals on a number of questions of law. Assuming that the evidenceplaced before the jury was properly before them, we cannot say that theverdict was unreasonable or that it cannot be supported having regard tothat evidence. It is, therefore, only necessary for us to consider thearguments advanced by Counsel for the appellant on the points of law.The charges were based on an incident that occurred on the beach atMyliddy on the morning of March 23, 1940, when there was a clashbetween what became known during the trial as the Eastern and WesternParties. In the course of the clash three persons were killed and a•number of others injured. Of these, the three who were killed and amajority of those injured belonged to the Western Party. The appellantand his co-accused were members of the Eastern Party.
It appears unnecessary to set out the facts in any degree of detail. Itmay be sufficient at this juncture to say that the case for the prosecutionwas that the Eastern Party were the aggressors, the Western Party merelyvictims. The defence put forward by the appellant was that he wasacting in the exercise of the right of private defence. He said that heheard cries from the beach and saw some people from Kaddukadawaibeing pursued by a crowd from the West; that he ran to his house, gothis gun and four cartridges and joined the Kaddukadawai people, who bythat time appear to have turned their faces to their pursuers ; that heheard shots fired, fired two shots into the air and that he then fired at acertain man, Markandu, with the intention of preventing further firingfrom the West. He admitted in cross-examination that he knew thatwhat he was doing was likely to result in the death of someone. The juryindicated by their verdict that they rejected his story that he was actingin the exercise of the right of private defence. A number of grounds weresubmitted to us alleging the improper admission of evidence and severalinstances of misdirection and non-direction, Many of these appear to usto be without substance.
There are, however, three grounds of appeal which have invited ourcareful consideration. They are as follows : —
That the facts of the death of two persons other than the deceased,Sangarapillai, and of injuries to other persons were improperly put inevidence.
That in inviting the attention of the jury to clause 4 of section 294of the Penal Code, the trial Judge omitted to give a proper direction inregard to the meaning of the words : “ Without any excuse
That an.affidavit marked X 2 which is alleged to have been swornby the appellant and which was put in evidence by the Crown was notproved according to law and that its submission gravely prejudiced thecase against the appellant.
In regarcT to Point 1, it appears that medical evidence was led detailingthe nature of the injuries which caused the death of one Velupillai. Thefact of the death of one Sinappu, and to some extent the nature of hisinjuries was also before the jury. Further, the nature and extent of theinjuries incurred by ten of the Western Party were described in detail bythe medical witness. It is contended on behalf of the appellant that forthe purposes of the prosecution it was necessary to prove only the natureof the injuries sustained by the deceased, Sangarapillai, in respect of
28MOSELEY J.—The King u. Wijeyeratnam.
whose death alone the appellant and his co-accused were charged in thiscase. It is conceded that the injuries inflicted on the deceased and othersof his party were caused in the course of the same transaction. We werereferred to a decision of this Court in the case of The King v. MendiasIn that case evidence had been given by the prosecution witnesses to theeffect that persons other than the deceased received injuries from blowsstruck by the accused on the same occasion and medical evidence hadbeen led as to the nature of those injuries. This evidence had beenadmitted upon the footing that it might throw some light on the questionof the intention of the accused. It was held, by this Court that the factthat persons other than the deceased received injuries at the hands of theaccused was admissible in evidence as being so closely and inextricablymixed up with the guilty act itself as to form part of the same transaction,and therefore admissible under section 6 of the Evidence Ordinance.But it was held that the nature and extent of the injuries inflicted on otherpersons did not go to prove the malicious intention of the accused' towardsthe deceased. In the present case the Crown did not" rely upon suchevidence as being indicative of the intention of the appellant and hisco-accused. The evidence was not led in order to rebut a plea of accidentor mistake. It had, however, been indicated by the cross-examinationof prosecution witnesses that the defence was to some extent going torely upon the theory that the injuries sustained by the deceased andothers were caused in the course of a hand-to-hand conflict. This theorycould be exploded if it were shown from the nature and pattern of thegunshot wounds that they could not have been inflicted at close range.For that reason it seems to us that this evidence was relevant at the timeat which it was plated before the jury although at a later stage, in thelight of the defence put forward by the appellant, it became irrelevant inso far as he was concerned.
Point 2, although in the light of our decision to quash the convictionit is purely academic, seems to us, nevertheless, deserving of someconsideration. Clause 4 of section 294 of the Penal Code is one which it israrely necessary to consider in criminal trials- in this country. Thesection, by this clause, creates the offence" of murder if the person com-mitting the act by which death is caused knows that the act is soimminently dangerous that it must in all probability cause death, or suchbodily injury as is likely to cause death, and commits such act withoutany excuse for incurring the risk of causing death or such injury asaforesaid. The following illustration of the commission of murder inthese circumstances is given : —
“ A, without any excuse, fires a loaded gun into a crowd of personsand kills one of them. A is guilty of murder, although he may nothave had a premeditated design to kill any particular individual.”
This clause is generally considered to have a limited application. It isunnecessary for that aspect to be considered here. In the light of theillustration the clause would seems to be peculiarly applicable to thecircumstances of the present case, were it not for the statement of theappellant that he deliberately aimed at a particular person. Nevertheless,
1 42 X. L: H. 244.
MOSELEY J.—The King v. Wijeyeratnam.29
it seems to us that the learned Judge was right in drawing the attentionof the jury to this provision of our law which defines one set of circum-stances in which the offence of murder may be committed, in case thejury should, as they did, reject the story of the appellant. The clauseand the illustration were put to the jury verbatim. There was not,however, any direction as to the nature of the circumstances which mightcome within the meaning of “ any excuse ” and consequently reduce theoffence from murder to culpable homicide not amounting to murder.There was no doubt a very complete direction given to the jury in regardto the appellant’s plea that he was acting in the exercise of the right ofprivate defence. This plea, if accepted in its entirety, would haveentitled the appellant to acquittal even on the footing that he intendedto cause the death of Sangarapillai. Since, however, the attention of thejury was definitely directed to the possibility of convicting the accused,even if he had no such murderous intention as is set out in the first threeclauses of section 294, it seems, to us that the effect, of clause 4 should havebeen more precisely explained to them. Mere knowledge on the part ofthe person committing the act which causes death that it is so imminentlydangerous that it must in all probability cause death does not in itselfconstitute the offence of murder. That would be culpable homicide notamounting to murder. As Plowden J. in Barkatulla (1887) (P. R. No. 32of 1887, p. 64) observes : —
“ An act done with such knowledge alone is not prima facie an actof murder …. It becomes an act of murder only if it can bepositively affirmed that there was no excuse …. it must be awholly inexcusable act of extreme recklessness. ”
In the course of the same judgment the learned Judge continues : —
“ It is a matter of fact and not of law whether a particular act ofhomicide committed with the knowledge described in clause 4 ofsection 300, i.e., section 294 of the Ceylon Penal Code, is committedwithout any excuse. As the 4th clause is framed, it need never bedetermined as a matter of law what circumstances, other than orfalling short of the five exceptions, constitute an excuse, it being ineach case a question of fact whether from the concomitant circum-stances which are proved, the just inference is that the act was done‘ without any excuse ’. As this 4th clause is expressed, like the threepreceding clauses, to be subject to the five exceptions whicn are legalexcuses for murder (as contra-distinguished from culpable homicide)it is evident that the words ' without any excuse ’ in clause 4 do notmean merely ‘ in the absence of the circumstances described in theexceptions ’. A jury or a Court as a Judge of fact is left at liberty toaffirm upon proof of circumstances other than or falling short of anexception, not that these circumstances form an excuse for murder,but that in view of them the jury or Court is unable to affirm that theparticular act of homicide was committed without any excuse, and istherefore unable to pronounce the act to be culpable homicide amount-ing to murder, as defined in clause 4 of section 300. ”
The authority above cited is not available. The observations attributedto Plowden J. are as set out in RaXanlal’s Law of Crimes (14thed.. p. 720 et seq.). It may be that in this case the jury were attracted by43/6
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MOSELEY J.—The King v. Wijeyeratnam.
the similarity of the circumstances to those set out in the illustration toclause 4. It is equally possible that in the absence of a special directionupon the point they may have confused the excuse to which the clauserefers with the exceptions which are legal excuses for murder and foundthat there was no evidence to support any of those exceptions whereasthey should have had an opportunity of considering whether there was anentire absence of such excuse as would make the offence merely that ofculpable homicide not amounting to murder. As we have alreadyobserved, this point is obiter in so far as the decision of this appeal isconcerned. Nevertheless, we have thought it proper to express ouropinion upon the manner in which/clause 4 should be put to a jury.
We now come to the point which prompted our decision to set aside theconviction. As has already been observed, the appellant who gaveevidence on affirmation admitted that he fired two shots at a certainmember of the Western Party. He. realized, he said, that what he wasdoing was likely to result in the death of someone. But he excused hisconduct on the ground that he was acting in the exercise of the right ofprivate defence. He was cross-examined by Counsel for the sixthaccused and in the course of cross-examination it transpired that he hadapplied to the Supreme Court for bail and in support of his applicationhad sworn an affidavit"; that the person before whom he swore the affidavit.was'Mr. Nalliah, a Justice of the Peace. A copy of the affidavit was putto him and, in particular, paragraph 5 which is-as follows : —
“ That I have been falsely implicated in this case by some of myfather’s enemies and also cm mere suspicion because I possess a licensedgun. ”
The appellant agreed that in the affidavit—sworn by him he stated thatthe enemies of his- father were implicating him, but to that statement headded the word ‘ alone He agreed, however, ,-that he had used thewords ‘ on mere suspicion because I possess a licensed gun ’ but explainedthat he said so because he alone was implicated. Later in the trial ..theClerk of Assize was called and he produced from its proper custody theappellant’s petition for bail together. with what purported to be-theaffidavit in .support. The aflMavit was signed^.by one Iyasamy Wijeye-ratnam in English and i appeared to have been affirmed beforeMr. Nalliah, J.P. Paragraph 5 of the affidavit is in the same terms/as.paragraph 5 of the copy to which reference has been made. The affidavitwas admitted in evidence. The learned trial Judge in commenting uponthe appellant’s-defence naturally referred to the Affidavit and commented” upon the fact that-powhere in the affidavit did the appellant suggest as areason for bail thcd^f^ had fired in the defepce of the Kaddukadaujaipeople. The appellant’s explanation was al$o/put to the juiry and theywere invited to ask themselves if they felt they 'would.be .satisfied witl>that explanation. It was suggested that the. affidavit'gave a very strongimpression that the appellant’s grounds for his application^were that he.had been falsely implicated in the matter and that he ywas in no wayconnected with it. The jury were told that they might think it a mattei
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MOSELEY J.—The King v. Wijeyeratnam.
for surprise that the appellant did not base his application for bail uponthe circumstances which he now puts forward in his defence and they werereminded that it was not until the trial that such a defence was raised.
The point for decision is whether or not the affidavit was properly inevidence. Counsel for the appellant assumed that the prosecution reliedupon section 80 of the Evidence Ordinance (Cap. 11) which permitscertain presumptions to be drawn when a document is producedpurporting to be a record or memorandum of the evidence given by awitness in a judicial proceeding. Crown Counsel, however, did not relyupon section 80, but upon section 145 -of the Evidence Ordinance, whichprovides for proof of a previous statement made by a witness in writingor reduced to writing. As has been observed, the appellant admittedmaking an affidavit before Mr. Nalliah, but he did not admit that the copywhich was put to him agreed in all respects with the contents of theaffidavit he admits having made. It would have been an easy matter toprove that the affidavit produced from the record of this Court was theone made, if indeed it was, by the appellant. He might have been calledto admit, or deny as the case may be, the signature to the affidavit, orMr. Nalliah might have been called to prove that it was the appellant whoin fact had made the affidvit. Neither of these things was done. Itseems, therefore, to us that there was no proof that the person who madethe affidavit produced was the appellant. In the absence of such proofthe affidavit could not be admitted in evidence against him. If authorityfor this proposition is required, it may be found in Barnes v. Parker',where Martin B. refused to admit an affidavit sworn by a party withoutproof of his handwriting. The same difficulty arises if it is sought tobring the affidavit within the scope of section 80 of the Evidence Ordinance.In that case, however, at least one further difficulty arises. In order tobring the document within the scope of the section a preliminary require-ment is that it shall purport to be the record of the evidence of a witnessin a judicial proceeding. The judicial proceeding contenplated in thepresent case could only be the application made to the Supreme Court forbail. Section 428 of the Criminal Procedure Code is as follows : —''•
“ Subject to general rules any affidavit may be used in a criminalcourt if it is sworn—.
(a) in this Island before any person generally or specially authorizedby the Supreme Court to administer oaths in the SupremeCourt or any District Judge or Magistrate ; ”
It does not appear that any “general rules” have been made touchingthis matter.. An affidavit, therefore, which it is sought to use in such amatter as an application for bail, must be sworn or affirmed before aperson authorised in terms of paragraph (a). Mr. Nalliah does not fallwithin that category. It is noteworthy that section 49 of the CriminalProcedure Code which deals with proof of service of summons wasamended in 1919 in order to enable an affidavit of service to be swornbefore any person appointed by the Governor on his' behalf. The amend-ment, no doubt, was prompted by the desirability, for the sake ofconvenience, of enlarging the class of persons before whom such
115 L. t. (X. s.) p. 21S.
32 MOSELEY S.P.J.—Chairman, Urban Council, Jaffna v. Rasendram.
oaths might be made. One may deduce therefrom a clear intention onthe part of the Legislature to preserve generally the limits imposed bysection 428. It does not seem to us that the affidavit was properlybefore the Court to which the application for bail was made. It thereforecannot be regarded as the record of evidence in a judicial proceeding.The position is then, that the affidavit was improperly admitted before thejury. Had it been excluded, it would not have been open for the trialJudge to invite the jury-to examine the appeallant’s defence in the light ofparagraph 5 of the objectionable affidavit. The assumption that he, at thetime of applying for bail, had indicated a defence different from that putforward at the trial may well have had a considerable effect on the mindsof the jury, prejudicial to the appellant. For this reason we have thoughtfit to quash the conviction and sentence and order a judgment of acquittalto be entered. .
Conviction quashed.