067-NLR-NLR-V-65-THE-QUEEN-v.-W.-M.-PUNCHI-BANDA-and-another.pdf
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The Queen v. JPuneM Banda
[Ik the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Abeyesundere, J., and
P. A. Silva, J.
THE QUEEN v. W. M. PUNCH! BANDA and another
Appeals Nos. 143 and 144 of 1962, with Applications Noe. 153 and 154S. G. 6—M. G. KvXiyapitiya, 11570
Trial before Supreme Court—Jury divided fow to three—Resulting position—CriminalProcedure Code, ee. 223 (2), 247 (2), 250.
Where, in a trial before the Supreme Court, the jitry, after retiring to considertheir verdict, are divided four to three, neither section 247 (2) nor any otherprovision of the Criminal Procedure Code empowers the presiding Judge todirect the jury to retire for fhrther consideration. In sueh a case, the onlycourse open to the Judge is to discharge the jury under section 250.
BASNAYAKE, C.J.—The Queen v- Punchi Banda
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PPEALS, with.applications far leave to appeal, against two convictionsin a trial before the Supreme Court.
Colvin R. de Silva, with M. L. de Silva, Nihal Jayemclcrema andR. Rajasingham (assigned), for Accused-Appellants.
S. S. Wijesinka, Crown Counsel, with Cecil Qoonewardena, CrownCounsel, for Attorney-General.
February 12, 1963. Basnayakd, C.J.—
The appellants have been convicted of the offence of murder of Wije-sundera Arachchilage Marthinahamy and ELarunanayake Pathiranne-helage Andiris Appuhamy and sentenced to death.
Learned counsel for the appellants urged only two of the groundsstated in the notice of appeal. They are—
" (2) When the foreman of the jury, after retirement and due consi-deration, announced that they were divided by 4-3 in their verdict,the trial judge invited the jury to further consider their verdict to makeit an acceptable one. In doing so in the way he did, and consideringthe fact that without any further directions from the trial judge,and within seven minutes of their second retirement they returneda 5-2 verdict against the appellants, the jury were made to believe orthey might well have been made to believe that they were precludedfrom announcing a 4-3 division. The course adopted by the trialjudge in suggesting to them to bring an acceptable verdict on the faceof their 4-3 division was not warranted by the law, and in any case hisfailure to make it clear to the jury that if even after further considera-tion they were unable to agree upon an acceptable verdict it was stillopen to them to announoe any division, depending upon the view eachof them took on the evidence adduced, amounted to a misdirectionresulting in a miscarriage of justice.
The trial judge wrongly admitted the evidence of H. Don PeterJayatilleke, Inspector of Police, that the 1st accused-appellant hadmade a statement to him as follows :—
‘At Kalugamuwa, near the fibre mill I hid the sword under aculvert, and I can point it out.’
in consequence of which the sword PI was alleged to have been re-covered. There was no evidence that PI was the sword used to inflictthe injuries on the deceased persons, and the wrongful admission ofthis evidence gravely prejudiced the case of the 1st accused-appellant,resulting in a miscarriage of justice.”
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BASNAYAKE, 0Jf.—Z%a Qu**n t>. PmuM Bcmda
The facts material to a consideration of the feet ground are as follows :•—
The jury retired at 3.33 p.m. and returned at 3.57 pun, The Clerk o£Assize addressed the Foreman thus;
" Mr. Foreman, are yon unanimously agreed upon your verdict inrespect of each of these accused ?”
The Foreman replied—
“We are divided.”
Then he was asked—
“How are yon divided ” 1
He answered—
“ Four to three. ”
Then the presiding Judge asked the Foreman—
“ Is there any chance of your reaching another proportion ?”
The Foreman then asked—
"Is it by further discussion, My Lord ?”
The learned Judge replied—
" Yes. Four to three is not a legal verdict. You think you couldarrive at something nearer unanimity if you could consider farther ?”
The Foreman answered—
" We will consider further, My Lord.”
The jury then retired and returned in ten minutes. The questionsput by the Clerk of Assize and the answers given to them are as follows :—
“ 5132. Q : Mr. Foreman, are you unanimously agreed upon yourverdict in respect of the 1st accused in respect ofcount 1?
A : We are divided.
Q : How are you divided ?
A : Five to two.
Q: Do you find the 1st accused, Wijesundera Mudiyan-
selage Punch! Banda, guilty of the offence of murderon count 1?
A : Guilty.
Q : Are you unanimously agreed upon your verdict in
respect of the 1st accused on count 2 ?
A : We are divided, five to two.
Q : Do you find the 1st accused Wijeaundera Mudiyanse.lage Punchi Banda guilty of murder on count 2 !
At Guilty of murder.
5136.
BASNAYAKE, C.J.—The Queen v. Punchi Banda
345
Q:A:
Q:A:
Q:A :
Q:A:
Q:A:
Q:
A:
Are you unanimously agreed upon your verdict in res-pect of the 2nd accused, Kaluaratchilage Don Martinon count 1 ?
We are divided.
How are you divided ?
Five to two.
Do you find the 2nd accused Kaluaratchilage DonMartin guilty of murder on count 1 ?
Guilty of minder.
Are you unanimously agreed upon your verdict in res-pect of the 2nd accused Kaluaratchilage Don Martinon count 2 ?
We are divided.
How are you divided ?
Five to two.
Do you find the 2nd accused Kaluaratchilage DonMartin guilty of murder on count 2 ?
Guilty of murder.”
Was thejleamed Judge right in law when he asked the jury to retirefor further consideration ? Does section 247 (2) or any other provisionof the Code empower a Judge to direct the jury who are divided four tothree to retire for further consideration in order that they may arrive at“ something nearer unanimity ” or reach “ another proportion ” ? Sec-tion 247 deals with a case in which the jury are ready to give their verdict.When they are divided four to three, are they ready to give their verdict ?We think not, for the reason that section 223 (2) provides that the verdictreturned shall be unanimous or by a majority of not less than five to two.Where the jurors are divided and axe unable to reach a majority of notless than five to two, they cannot be said to be ready to give their verdict,for, no verdict can be returned when their division is four to three. Sucha case does not fall within the ambit of section 247 (2) and the power con-ferred thereby cannot be exercised. The learned Judge was thereforewrong in taking the course he took. Where the jury cannot agree ona verdict, section 250 provides that the Judge shall, after the lapse of suchtime as he thinks reasonable, discharge them. If the jury were directedat the end of the summing-up that their verdict must be one of not lessthan five to two, the situation that arose in the instant case could have,perhaps, been avoided. If the jury are unable to arrive at the requiredmajority and do not return with their verdict within such time as theJudge thinks reasonable, be must discharge them. But if, despite thedirection that the verdict must be by a majority of not less than five totwo, the jury do what in law they should not do, and return without
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ThetiwMKstenUai t>. ITaUiah
having arrived at a verdict and say they are unable to arrive at a verdict,then what is the presiding Judge to do ? The only course open to himis to discharge the jury under section 250.
The other point argued by the learned counsel was that the statementsmade by the first appellant to the police officer in the course of investiga-tion under Chapter XXI have been illegally admitted in evidence. Thosestatements ace to the following effect:—“ At Kalugamuwa, near thefibre mill I hid the sword under a culvert, and I can point it out * Havingtravelled with the Inspector in a jeep up to the culvert he said that tbesword was there. Clearly these statements were illegally admitted as theyare excluded by section 122 (3) of the Criminal Procedure Code for thepurpose for which the prosecution sought to prove them. A furtherillegality in the same connexion is that the Inspector was permitted togive oral evidence of the contents of a document.
We are of opinion that the conviction should be quashed. The onlyquestion that merits further consideration is whether we should directthat a judgment of acquittal be entered or order a new trial. We are ofopinion that theie was evidence before the jury upon which the accusedmight reasonably have been convicted, but for the illegalities upon whichthe appeals are allowed. We therefore order a new trial.
New trial ordered.