Present:

R. C. RAJAPAKSE and others, Appellants, and THE STATE,
Respondent

Appeals Nos. 4-8 of 1973, with Applications 4-8

Five persons were indicted before the Supreme Court upon charges, inter alia, of unlawful assembly and of the murder of two persons A and B committed by one or more members of that unlawful assembly. The Jury, however, found all the accused guilty of the murder of A but returned a verdict of culpable homicide only against the 4th and 5th accused in respect of the death of B. The verdict brought by the Jury showed that the Jury had not understood the directions of law concerning the difficult topic of vicarious criminal liability. The Jury was then discharged and a fresh trial was held, at which the accused were convicted on both the former charges.

that, at the first trial, there was established such confusion in the minds of the Jury that it was quite unsafe to accept from the Jury a verdict involving the imposition of sentences of death on five persons. The Jury was therefore properly discharged by the Judge in the exercise of the powers conferred on the Judge by section 230 of the Criminal Procedure Code to discharge the jury whenever in the opinion of the Judge the interests of justice so require. In the circumstances there was in law neither a conviction nor an acquittal at the first trial and no plea of autrefois acquit or convict could arise for decision at the second trial.

Quaere, whether the plea of autrefois acquit is one that must be tried by the Jury in a case before the Supreme Court.

against five convictions at a trial before the Supreme Court.

G. E. Chitty, with A. C. de Zoysa, Sarath Muttetuwegama, Justin Perera, G. E. Chitty (Jnr.), G. L. M. de Silva, Everard Ratnayake and J. N. David (assigned), for the accused-appellants.

Noel Tittawella, Deputy Solicitor-General, with T. M. K. U. Seneviratne, Senior State Counsel, and D. S. Wijesinghe, State Counsel, for the State.

Cur. adv. vult.

September 25, 1973.
This appeal was set down for hearing before the present Bench of five Judges of this Court, because the Bench of three Judges before whom the appeal had been earlier listed felt it desirable that a statement of the law expressed in some previous decisions is worthy of re-consideration. The statement was (as far as we are aware) first made in the judgment of this Court in the case of Handy, [ 1 (1959) 61 N. L. R. 265 at p. 271. ] 61 N. L. R. 265 at p. 271.

"The plea of autrefois acquit when pleaded is one that must be tried and disposed of before the issues raised by the other pleas are tried (s. 330 (2)). The plea is one that must be tried by the Jury in a case before the Supreme Court."

The circumstances of the case of Handy are briefly as follows :

The appellant was tried on two charges, of the murder of one person and the attempted murder of another. At the conclusion of the summing-up by the trial Judge, the Jury retired to consider their verdict; and upon their return they stated in answer to the usual questions from the Clerk of Assize that by their unanimous verdict they found the prisoner not guilty of the offence of murder and also not guilty of the offence of attempted murder. The trial Judge then immediately stated: " Don't record this verdict. I refuse to accept this verdict." The Judge thereafter made an order in which he quite clearly stated his view that the defence in the case was palpably false, and that the Jury had obviously not understood his directions on the law and on the evidence. The Jury was then discharged and a fresh trial was held, at which the prisoner was convicted on both the former charges.

In the judgment of this Court (delivered by Basnayake, C.J.) the questions for

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