MARTIN AND ANOTHER V REPUBLIC OF SRI LANKA

MARTIN AND ANOTHER V REPUBLIC OF SRI LANKA

COURT OF APPEAL
SISIRA DE ABREW, J.
BASNAYAKE, J.
CA 185/2003
He RATNAPURA 81/99

Penal Code-Murder - Misdirections and non directions in the summing up - Plea of grave and sudden provocation withdrawn from jury - Applicability of Section 334 of the Criminal Procedure Code- Miscarriage of justice?

The accused-appellants were tried by a Jury and were convicted by the unanimous verdict of the Jury of the murder of one W and sentenced to death.

In appeal, it was contended that there were misdirections/non directions in the summing up, that the trial Judge had acted on facts regarding the grave and sudden provocation and as such consideration of the plea of grave and sudden provocation was withdrawn from the Jury the comments made by the trial Judge has prejudiced the minds of the jury.

 Held

(1) The trial Judge explaining the offence of culpable homicide not amounting to murder told the Jury that in the offence of culpable homicide not amounting to murder the offender did not entertain the murderous intention - this gives the impression to the jury that the accused could not be convicted of the offence of culpable homicide not amounting to murder if he entertains murderous intention - this is a misdirection on law.

(2) In discussing the facts relating to the plea of grave and sudden provocation telling the jury that he did not think: that the accused would get provoked - created the impression in the minds of the jury that the accused in his opinion is not entitled to the plea of grave and sudden provocation - by doing this has withdrawn the plea of grave and sudden provocation from the consideration of the jury - this has to be decided by the jury. This direction is a misdirection.

(3) In a trial by jury, the question whether the evidence of a witness should be accepted or rejected is a question of fact which should be left to the jury.

Per Sisira de Abrew, J.

"AJudge must not in the course of his summing up use language, the cumulative effect of which would remove from the consideration of the jury what are essentially questions of facts for their determination.

Held further

Per Sisira de Abrew, J.

"Since the defence taken up by the accused is a false defence and is not capable of creating a reasonable doubt in the prosecution case and also considering the story. Items of evidence led, I am of the opinion that the Court is justified in applying the provisions to Section 334 of the Code".

Per Sisira de Abrew, J.

"When I consider the evidence in the instant case, I cannot conclude that the verdict of the jury is unreasonable or cannot be supported on the evidence. I cannot conclude that it was a wrong decision or the misduties which I have stated above have caused a miscarriage of justice - jury could not have brought any other verdict other than the verdict of murder".

APPEAL from the judgment of the High Court of Ratnapura.

1. Albert Singho us. Queen - 74 NLR360

2. L. N. Fernando us. A.G. - 1998 - 2 Sri LR 329 (SC)

3. M.H. M. Lefeer us. Queen- 74 NLR246 at 248

4. Manner Mannan us. Republic of Sri Lanka - 1990 - 1 Sri LR 280

Niranjan Jayasinghe for 1st accused - appellant

Nimal Mutukumara for 2nd accused-appellant

V. K. Malalgoda DSG for AG

August 08th 2008

SISIRA DE ABRAW, J.

    Heard both Counsel in support of their respective cases.

    The accused-appellants were tried by a Jury before the High Court Judge, Ratnapura.

    The accused-appellants in the case by the unanimous verdict of the Jury were convicted of the murder of a man named Kuttapitiye Gedera Justin Wijenayake and were sentenced to death.

    On behalf of the 1at accused-appellant, learned counsel urged following grounds as militating against the maintenance of the conviction.

(1) mis-directions and non-directions in the summing-up regarding the murder and the culpable homicide not amounting to murder based on intention;

(2) the learne

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