THE QUEEN v. L. A. PIYADASA and 3 others

080-NLR-NLR-V-63-THE-QUEEN-v.-L.-A.-PIYADASA-and-3-others.pdf


BA8NAYAKE, C.J.—The Queen v. Piyadasa
399
[In the Court of Criminal Appeal]
1959 Present: Basnayake, C.J. (President), Polle, J., and Sansonl, 3THE QUEEN v. I*. A. PI Y AT) AS A and 3 othersAppeals Nos. 22 to 25 of 1959, with Applications Nos. 29 to 32S. C. S—M. C. Colombo South, 88795
Trial before Supreme Court-—Jury divided four to three—Incapacity of Judge to requirethem to retire for further consideration—Quorum for verdict—Criminal ProcedureCode, as. 223, 247, 248, 249, 250.
Held (by the majority of the Court) : In a trial before the Supreme Court,the power conferred on the Judge by section 247 (2) of the Criminal Pro eduroCode to require the jury to retire for further consideration is exercisable onlywhen the jury are not unanimous but are agreed by the required majorityof not less than five to two. If the jury are divided four to three they haveno power under the Code to return a verdict, and the Judge, in such a case,must discharge them in accordance with the imperative requirement of section250 and cannot require them either under section 247 (2) or under section 248(2) to retire for farther consideration.
Appeals against four convictions in a trial before the SupremeCourt.
E. Chitty, Q.C., "with K. Shinya, L. T. P. Wettasingha and NevilleWijeratne (assigned), for Accused-Appellants.
A. C. M. Ameer, Acting Deputy Solicitor-General, with V. S. A.PuUenayegum, Crown Counsel, for Attorney-General.
Cur. adv. wit.
July 27, 1959. Basnayake, C.J.—
The four appellants were indicted on the following charges :—
ct 1. That on or about the 29th day of May 1958, at Dehiwelain the division of Colombo South, within the jurisdiction of this Court,you did agree to act together with a common purpose for or in commit-ting or abetting the offence of illegal removal of textiles and otherarticles from Ranee Stores, premises situated at No. 39, Galle Road,Dehiwela, an offence against Regulation 22 of the Emergency (Miscel-laneous Provisions & Powers) Regulations, published in Government
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BASNAYAKE, C.J.—The Queen v. Piyadasa
Gazette No. 11,321 of the 27th May 1958 and made by the Governor-General under Section 5 of the Public Security Ordinance, No. 25 of1947 (as amended by Act No. 22 of 1949 and Act No. 34 of 1953) andyou are thereby guilty of conspiracy to commit the said offence, inconsequence of which conspiracy the said offence of illegal removalof textiles and other articles from the said premises was committed,and you are thereby guilty of an offence punishable under the saidRegulation 22 read with Sections 113B and 102 of the Penal Code.
“ 2. That at the time and place aforesaid and in the course of thesame transaction, you did illegally remove textiles and other articlesfrom the said Ranee Stores, premises situated at No. 39, Galle Road,Dehiwela, and you are thereby guilty of an offence against the saidRegulation 22 punishable under the said Regulation.
“ 3. That at the time and place aforesaid and in the course of thesame transaction you did commit house breaking by night with intentto commit theft by entering the said Ranee Stores in the occupationof one Anthony Pulle Alfred, and that you have thereby committedan offence punishable under Section 443 of the Penal Code.
“ 4. That at the time and place aforesaid and in the course of thesame transaction you did in a building used for the custody of pro-perty to wit, the said Ranee Stores, commit theft of textiles and otherarticles all to the value of about Rs. 992*93 property in the possessionof the said Anthony Pulle Alfred, and that you have thereby committedan offence punishable under Section 369 of the Penal Code.”
The trial lasted seventeen days. It commenced on 2nd February1959 and ended on 25th February. The learned Commissioner’s summing-up commenced on 23rd February and was concluded shortly before12.18 p.m. on 25th February. The jury retired at 12.18 p.m. andreturned at 1.25 p.m.
When the foreman was asked by the Clerk of Assize “ Mr. Foreman,are you unanimously agreed upon your verdict in regard to the 1stprisoner, Liyana Arachchi Piyadasa, on the 1st count of the indictment V*he answered “ Not unanimous ”. In answer to the question “ How areyou divided ?** he said “ 4 to 3 He gave the same answer in regardto each of the other counts of the indictment. The learned Commis-sioner then asked the following question :—“ Are we to take it that youare divided 4—3 in respect of all these accused upon all these charges V*To this the foreman answered ** Yes ”.
Thereupon the learned Commissioner addressed the jury thus—
“ Gentlemen of the jury, under our law, your verdict cannot be
acted upon by this Court unless there is a majority verdict of 5-2.
Otherwise it will mean a fresh trial of this case. In view of that I
BA5NAYAKZE, C.J.—The Queen v. Tiyadasa
401
request you to re-consider your verdict a little further and see whetheryou can arrive at a verdict on which this Court can act- Of course-I am not asking anyone of you to consider it again merely for that'purpose. But considering the consequences of such a verdictinconvenience and expense, which all parties, especially the accused,may be put to in the event of a fresh trial being held in this case it maybe worthy of your consideration. It may be a matter for you to-consider further to find a verdict of at least 6—2.
** If there is any point upon which you need any further directions-from this Court I am quite prepared to deal with that matter with aview to resolve any doubt that you have in your minds. Of courseI do not want to know what view has been taken by any of the jurorswith regard to any point. If you can point out any points ofdifference that may have arisen in the course of your discussions Imay assist you further. If you are in a position to do so I request youto refer any further matters for the directions of this Court now or elseyou can retire to the jury room and consider this matter further.Would you like to go back to the jury room and consider this matterfurther ? ”
The foreman of the jury said “ Yes The learned Commissioner then-proceeded to address them further—
“ If you wish you can consider the matter further and bring a verdict,,or else if you want any further directions from Court you can comeand ask, so that you can tell this Court that you wish to hear furtherdirections upon these points. The verdict on which this Court couldact would be a majority decision of 5-2. Failing that, of course, Ihave to order a retrial. Would you kindly retire and consider V*
The jury retired at 1.35 p.m. and returned at 1.45 p.m. This timewhen the Clerk of Assize addressed the foreman thus : ** Mr Foreman,are you unanimously agreed upon your verdict with regard to the1st prisoner Liyana Arachchi Piyadasa on count No. 1 1 ” he answered“ We are divided on a majority verdict of 5-2 on all counts in respectof all the accused.’* In answer to further questions by the Clerk ofAssize the foreman said that they found each of the appellants guiltyon each of the charges.
The appellants were each sentenced to undergo 7 years’ rigorousimprisonment on the first charge, 10 years’ rigorous imprisonment onthe second charge, 7 years’ rigorous imprisonment on the third charge,and 5 years’ rigorous imprisonment on the fourth charge.
Beamed counsel for the appellants submits that the course adoptedby the learned Commissioner is not warranted by the Criminal ProcedureCode and has resulted in a miscarriage of justice.
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BASNAYAKK, CUT.—The Queen v. Piyadasa
As the conviction of the appellants cannot be sustained if this submissionis well-founded, we shall deal with it before the other submissions oflearned counsel are discussed. The most convenient way of doing so is,first, to set out the relevant sections of the Code—
“ 223.(1) The jury shall consist of seven persons.
(2) The verdict returned shall be unanimous or by a majority ofnot less than five to two.”
“ 247.(1) When the jury are ready to give their verdict and are all
present the Registrar shall ask the foreman if they are unanimous.
If the jury are not unanimous the Judge may require them toretire for further consideration.
After such further consideration for such time as the Judgeconsiders reasonable or if either in the first instance the foreman saysthat they are unanimous or the Judge has not required them to retire,the Registrar shall say (the jurors being all present): * Do you findthe accused person (naming him) guilty or not guilty of the offence(naming it) with which he is charged ? ’
On this the foreman shall state what is the verdict of the jury.”
“ 248.(1) Unless otherwise ordered by the Judge the jury shall
return a verdict on all the charges on which the accused is tried andthe Judge may ask them such questions as are necessary to ascertainwhat their verdict is.
(2) If the Judge does not approve of the verdict returned by thejury he may direct them to reconsider their verdict, and the verdictgiven after such reconsideration shall be deemed to be the true verdict.”
“ 249.(1) The Registrar shall make an entry of the verdict on the
indictment and shall then say to the jury the words following or wordsto the like effect :
‘Gentlemen of the jury: attend whilst your foreman signs yourverdict. The finding of you (or of so many of you as the case may be)is that the prisoner A. B. is guilty’ (or ‘not guilty’).
The foreman shall sign the verdict so entered and the verdictwhen so entered and signed, but not before, shall be final.
When by accident or mistake a wrong verdict is delivered thejury may before it is signed or immediately thereafter amend theverdict.”
BA8NAYAKK, C.J.—The Queen v. Biyada&a403
i:
M 260. If the jury or the required majority of them cannot agreethe Judge shall after the lapse of such time as he thinks reasonable
discharge them.**
It would appear from section 223 (2) that the Jury may return aunanimous verdict, or a verdict by a majority of six to one, or a verdictby a majority of five to two, and no other. If the Jury are divided four tothree they have no power under the Code to return a verdict. So whensection 247 (1) speaks of “ when the jury are ready to give their verdict ”it does not contemplate a case in which they are divided four to three ;because when they are so divided they have no power to return a verdict,and it cannot be said that they are ready to give their verdict.
It is the invariable practice of some Judges to inform the jury, at theend of the summing-up, that their verdict must be by a majority of notless than five to two. Where such a direction is given, the jury will soinform the Judge, if the required majority of them cannot agree. Onbeing so informed, it is the view of the majority of us, that it is the dutyof the Judge to discharge the jury in accordance with the imperativerequirement of section 250.
But where such a direction is not given, and the jury do not on theirreturn inform the Judge that the required majority of them cannot agreeand the Clerk of Assize, assuming that they have arrived at a “ verdict ”asks them, as in the instant case, whether they are unanimous, andthey disclose the fact that they are divided four to three, can the Judgerequire them under section 247 (2) to retire for further consideration?The majority of us think that he cannot, for the reason that, that powercannot be exercised in a case in which the jury have not arrived at a** verdict ”. The power conferred by section 247 (2) to require the juryto retire for further consideration is exercisable only when they are notunanimous but the required majority agrees.
Although, in his brief address to the jury, the learned Commissionerused the word “ reconsider ”, it would appear from the context in whichthat word occurs that, when he invited the jury to reconsider theirverdict, he meant that they should retire for further consideration in orderto arrive at a verdict, i.e., a finding by the required majority. As thereis no clear indication that the learned Commissioner had section 248 (2)also in mind when he gave his direction, it is sufficient for the purpose ofthis judgment to state that, even the power conferred by that sectioncannot be exercised in a case in which the jury have not arrived at averdict either unanimously or by the required majority.
In the instant case, after the foreman stated that they were notunanimous, the Clerk of Assize proceeded to ascertain how they weredivided and after the jury had indicated that they were divided four tothree the learned Commissioner proceeded to place before them certain
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BASNAYAKE, C.J.—The Queen v. Piyadasa
considerations and asked them to reconsider their verdict. Among thematters the jury were asked to take into account are—
(а)that unless there is a majority verdict of 5 to 2 it will mean a fresh
trial of the case,
(б)the inconvenience and expense, which all parties, especially the
accused, may be put to in the event of a fresh trial being held.
The learned Commissioner reminded them three times that unless theyarrived at a verdict by a majority- of five to two he would have to ordera fresh trial. In his anxiety to avoid an abortive trial in this case, thelearned Commissioner overlooked the fact that the discharge of the-jury, on account of the failure of the required majority of them to agree,does not inevitably result in a second trial. It is open to the Attorney-General in a suitable case to enter a nolle prosequi. He also does notappear to have given sufficient consideration to the fact that to the-appellants the opportunity of establishing their innocence at a second trialbefore another jury was far more precious than all the money they wouldhave to spend. The considerations the learned Commissioner invitedthe jury to take into account in arriving at a verdict by the required,majority are clearly irrelevant. In effect he invited one or more of thojurymen, who were sworn to give a true verdict according to the evidence,and who had, before the commencement of the trial, been admonishedby the Clerk of Assize thus, ‘ ‘Your duty now is to listen to the evidenceand upon that evidence to find by your verdict whether or not the accusedis guilty of the charge or charges laid against him in the indictment ”, tnchange a decision arrived at after mature deliberation, on grounds entirelyunconnected with the evidence in the case. The Code does not providefor such a course. And what is more, it would appear that one juror,influenced by those irrelevant considerations, placed before themby the learned Commissioner, reversed, in the short space of ten minutes,the decision he had arrived at after over an hour’s deliberation on theevidence in the case, for, though invited to do so, the jury did not indicateto him any point or points in the case itself on which they had any difficulty,nor did they ask for further directions on any matter arising on theevidence. The procedure adopted by the Commissioner is not warrantedby the Criminal Procedure Code and the complaint of the appellants thatthey have been gravely prejudiced by it is not unjustified. In ourview the course adopted by the learned Commissioner has resulted in amiscarriage of justice. We therefore allow the appeal and quash theconvictions of the appellants.
The next question for decision is, whether a retrial should be ordered,or whether we should direct a judgment of acquittal to be entered. Todecide that question it is necessary to consider the material facts. [TheCourt then considered the facts and reached the conclusion that theaccused should be acquitted.]
Accused acquitted.