106-NLR-NLR-V-54-W.-AVIS-et-al-Appellant-and-THE-KING-Respondent.pdf
442
Avis v. The King
[Court or Criminal Appeal]
1951 Present: Dias S.P. J. (President), Gratiaen J. and H. A. de Silva J.
W. AVIS et al., Appellants, and THE KING,Respondent
Appeals 12-14 with Applications 22—24
S. C. 41—M. C. Panadure, 11,923
Evidence—Several accused—Evidence of same weight against each accused—Properverdict—Misdirection.-
Five prosecution witnesses bad. purported to identify three accused personsjointly charged with the offence of attempted murder. The defence was thatneither the 1st nor the 2nd nor the 3rd accused was present at the scene ofoffence. The jury acquitted the 3rd accused but convicted the 1st and 2ndaccused.
Held, that the evidence against the 1st and 2nd accused could not be consideredsufficient as the evidence against the 3rd accused whom the jury acquitted wasexactly of the same weight.
A PPEALS. with applications for leave to appeal, against threeconvictions in a trial before the Supreme Court.
E. Chitty, with J. A. L. Gooray, for the 1st and 2nd accusedappellants.
4th accused appellant in person.
A. Wijetnanne, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
OR ATX AKN J.—Avia v. The King
443
May 7, 1951. Gkatiaejt J.—
There were four accused in this case. They were jointly tried at theColombo Assizes (1) for the attempted murder of K. Jemis on 27thDecember, 1949, (2) for the attempted murder of K. D. Methias in thecourse of the same transaction.
As the learned presiding Judge pointed out in the course of his chargeto the jury, the incident was a sequel to a land dispute between rivalfactions of co-owners of a land which had been surveyed by SurveyorGoonetilleke, with a view to division, a fortnight earlier. Jamis andMethias, who belonged to one faction, denied that the land had been sur-veyed by Mr. Goonetilleke, but the Crown conceded that their evidenceon this point was false, and the jury were invited to assume that the evi-dence of Goonetilleke and the 4th accused stood unchallenged onthe point. On 27th December, 1949, Jamis and Methias, together withother members of their faction, constructed a hut on that portion ofthe land which had apparently been reserved for the other group ofco-owners of which the 4th accused was admittedly a member. In conse-quence, there was a clash on the land between certain individuals belong-ing to the two rival factions. Jamis and Methias were in one group, andthe 4th accused in the other.
The clash took place in or in the vicinity of the hut which Jamis andMethias had erected earlier in the day in assertion of their alleged rightsto that portion of the land on which it stood. Jamis and Methias bothsustained serious gun-shot injuries in addition to other injuries whichwere by comparison less grievous.
The case for the prosecution was that the 4th accused’s party consistedof himself, the 1st, 2nd and 3rd accused. It was alleged that the 1staccused was armed with a gun, the 2nd and 4th accused with swords, andthe 3rd accused with a club. Jamis, Methias and other alleged eye-witnesses have given identical accounts of what took place on that occasion.Their case was that the accused’s party arrived on the scene, armed withdeadly weapons, with the common object of driving Jamis and Methiasout of the disputed portion of the land and of killing them if they refusedto leave the property. The evidence is that, in pursuance of this commonobject, the 1st accused fired a shot at Jamis from close range, and thenre-loaded his gun and wounded Methias. Later, they say, he againreloaded his gun and shot Jamis in the thigh. Each of the other accusedis also alleged to have caused certain injuries to Jamis or Methias orboth of them with the weapons which he carried for the purpose.
The defence version is entirely different. Their position is that neitherthe 1st nor the 2nd nor the 3rd accused was present at the scene. The3rd accused gave evidence on his own behalf and called witnesses to provehis alibi. The 4th accused also gave evidence and, while admitting that hetook some part in the incident, he supported the alibi relied on by all theother accused. He admitted having caused certain minor injuries onsome members of the rival faction, but says that he acted in self-defenceand had for this purpose used a coconut rafter which he had picked up onthe spot when he was about to be attacked. His explanation for the gun-shot injuries inflicted on Jamis and Methias is that no member of his party
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GRATXAE N J.—Avia v. The King
carried a gun, but that while the clash between the opposing groups ofco-owners was in progress Jamis and Methias were wounded by shots 'which were suddenly fired in their direction by an unidentified personfrom the jungle which came almost right up to the hut. He disclaimedall knowledge of the person responsible for shooting Jamis and Methias,and the defence relied strongly on the discovery of some spent cartridgesat certain spots in the jungle not far from the hut. No cartridges werefound near the spot from which the 1st accused i3 alleged to have fired agun.
The trial continued for five days, and in the conflict of testimony onmany disputed questions of fact it became necessary for the jury to decideas preliminary matters whether it had been proved beyond reasonabledoubt (a) that the 1st, 2nd and 3rd accused were present at the scene at all,
that it was the 1st accused who Gaused the gun-shot injuries sustainedby Jamis and Methias. If these issues were decided against the accusedor any of them, the question would also arise whether the 2nd, 3rd and4t.h accused shared the 1st accused’s criminal responsibility for the seriousinjuries which he had inflicted on his victim.
Owing to the duration of the trial, and the difficult questions arising fordecision, the learned Judge very properly thought it necessary to chargethe jury at some length. The summing-up, allowing for an interruptionfor lunch, lasted approximately 2 hours and 15 minutes. The jury’s deli-berations, on the other hand, were exceptionally brief. They returnedwithin five minutes and pronounced the following verdicts :—
(a.) that the 1st, 2nd and 4th accused were guilty of voluntarily causinggrievous hurt to both Jamis and Methias ;
that the 3rd accused was not guilty of any offence.
It is implicit in these verdicts that in the jury’s opinion it had beenproved beyond reasonable doubt that the 1st, 2nd and (admittedly)the 4th accused were present at the scene, that it was the 1st accused whoinflicted the gun-shot injuries on Jamis and Methias (but not with a mur-derous intention or even the knowledge that death was a likely consequenceof his actions) and that the 2nd and 4th accused shared the criminal re-sponsibility of the 1st accused for these injuries because he had acted inpursuance of their common design to cause grievous injury to Jamis andMethias. It is also implicit in the verdict that the jury were not satisfiedbeyond reasonable doubt that, as alleged by the same witnesses for theprosecution, the 3rd accused was present and took part in the incident.
Mr. Chittv, who argued the appeals of the 1st and 2nd accused, invitedus to quash their convictions on the ground that, in the course of a longcharge v'hich was in many respects detailed, helpful and unexceptionable,the learned Judge had misdirected the jury on a fundamental matter—-namely, the maimer in which they should approach the case against the1st and 2nd accused if they decided that the case against the 3rd accusedhad not been established beyond reasonable doubt. We think that theobjection is sound, and that the misdirection on this point vitiates theverdiot against the 1st and 2nd accused.
GRATIAEN J.—Avis v. The Ring
443
That part of the charge to which objection has been taken by Mr.Chitty is in the following terms :—
“ If yon are satisfied in your mind that the 3rd accused did not takepart, then you ask yourselves how can all five witnesses make the samemistake on the matter? How one of them who went to the policestation did not mention the name of the 3rd accused. After takingall the circumstances together if you are satisfied, you may think the3rd accused’s evidence is true that he was not there. That is a verystrong circumstance against the prosecution case and that circum-stance will justify in creating a doubt about the evidence as to whetherthe 1st and 2nd accused were also there. But, gentlemen, if youdo not come to such a strong conclusion with regard to the 3rd accused—I mean if you can go so far as to say we accept that story is true, the posi-tion is we are doubtful. He may or may not have been at the Owita andbeing doubtful we acquit him. If that is the view you take, then I donot see how it could affect the credibility of the witnesses with regardto the 1st and 2nd accused and it will not prevent you from holding thatthe 1st and 2nd accused were there."
In our opinion the Judge had in this passage correctly directed the juryas to the effect which their unqualified acceptance of the 3rd accused’salibi must necessarily have on the strength of the case against the 1stand 2nd accused. It seems to us, however, that in the concluding wordswhich I have italicized there was misdirection. In the facts of thiscase, the credibility of the five prosecution witnessess who implicatedthe 1st and 2nd accused as well as the 3rd accused would in some degree beaffected even if the jury, without expressly believing the evidence of thedefence witnesses who supported the 3rd accused’s alibi, considered thatevidence sufficient to create a reasonable doubt as to his complicityin this transaction. All the accused were equally well known to the prose-cution witnesses who claimed not only to have seen them at the spot butalso to have observed each of them, including the 3rd accused, commitindividual unlawful acts against Jamis and Methias. Moreover, the inci-dent is alleged to have occurred at an hour when the possibility of an honestbut mistaken identification can safely be discounted. If therefore thejury took the view (as they must have done) that it was not safe to actupon the evidence of the prosecution witnesses who implicated the 3rdaccused, they should not have been directed that this circumstance didnot necessarily affect the weight of their testimony against the 1st and2nd accused. The present case is very similar to that of JR. v. JMargulas 1where all the alleged eye-witnesses had purported to identify two accusedpersons jointly engaged in broad daylight in the commission of theoffence of burglary. The jury convicted the 1st accused but acquitted the2nd. The Court of Criminal Appeal quashed the conviction of the 1staccuse*? on the ground that “ the evidence against him cannot be con-sidered sufficient if those against the man whom the jury acquitted was exactlyof the same weight ”. In JMargulas ’ case no complaint was made of thesumming-up, whereas in the present trial there is the additionalcomplication that the jury were not properly directed on this aspect ofthe case.'
(1922) 11 C.A.R. 3.
446
Jainudeen v. JHwrugiah
■ The convictions of the 1st and 2nd accused must-be quashed and wemake order acquitting them. This is not a case in which we can withpropriety affirm the convictions-notwithstanding the misdirection to whichI have referred. There was misdirection on an important aspect of thecase at a late stage of the summing-up, and having regard particularly tothe remarkable brevity of the jury’s deliberations after a long trial, wefind it impossible to say that they may not have been unduly influencedby the misdirection. What view they would have taken had they -beenproperly directed remains a matter for conjecture. If I may adopt theobservations of Lord Macdermott in Sambasivam v. Public Prosecutor 1“ the uncertainties are sufficiently reasonable to jeopardise the verdictreached and to justify the view that it ought not to stand ”.
There remains for consideration the verdict against the 4th accused.He was admittedly present at the scene and he does not deny that he tooksome part in the transaction. On the other hand, it is more than probablethat his convictions were based largely, if not entirely, on the jury’s viewthat he was criminally responsible for the gun-shot injuries allegedlyinflicted on Jamis and Methias by the 1st accused. We therefore thinkthat he is entitled to claim the benefit of our order acquitting the 1staccused. We accordingly quash the convictions of the 4th accused andacquit him of both charges.
In the view which the Court has taken, it is not necessary to express anyopinion on the other points raised by Mr. Chitty at the hearing of theappeal.
Appeals allowed.