King V. Peiris Appuhamy Et Al.,

[COURT OF CRIMINAL APPEAL.]

1942 Present: Howard C.J., Keuneman and Cannon JJ.

THE KING v. PEIRIS APPUHAMY et al.

13-M. C. Dandagamuwa, 9,841.

Accomplice-Question of mixed fact and law for Jury-Duty of Judge to warn Jury as to necessity of corroboration-To explain. the law as to what constitutes corroboration-What association with crime constitutes a person an accomplice-Criminal Procedure Code, ss. 244 and 245.

The question whether a person is an accomplice is for the Jury to decide.

It is the duty of the Judge to direct the Jury as to what association with the crime would constitute a person an accomplice.

If a person is an accomplice it is the duty of the Judge to warn the Jury that it would be unsafe to convict without corroboration and to explain to them the law as to what constitutes corroboration.

Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.

A witness who merely assisted in the disposal of the dead body but who did not take part in the perpetration of the crime is not an accomplice.

The learned Judge was justified in the circumstances of the case in commenting on the failure of the accused to offer an explanation of their conduct by giving evidence.

CASE heard by a Judge and Jury before 1st Midland Circuit.

F. W. Obeyesekere for both accused, appellants, who are also applicants in the application.

G. E. Chitty, C C., for the Crown.

June 8,1942. HOWARD C.J.-

This is an appeal on a question of law and an application for leave under section 4 (b) of the Criminal Appeal Ordinance against the conviction of the appellants on charges of murder. The first point taken by Counsel for the appellants was that it was erroneous on the part of the learned Judge to leave the question of an accomplice as a question of fact to the Jury. On page 42 of the charge the learned Judge stated as follows:

" I ought to point out to you that a great deal will depend upon the view you take of the actual position of Aron Appuhamy in this case, whether in your opinion he is an accomplice or not. That is the question for you to consider, whether Aron Appuhamy was an accomplice or not an accomplice, remember, in the murder, not in the disposal of the body of the man Jamis Appu."

So, in view of this passage there can be no doubt that the learned Judge left the question as to whether Aron was an accomplice as a question of fact to be decided by the Jury. In support of his contention that this was a misdirection, Mr. Obeyesekere has cited the case of the Queen Empress v. O'Hara [I. L. R. 17 Cal. 642.]. In this case, the trial Judge charged the Jury that they were not to convict upon the evidence of G., if satisfied that he was an accomplice and uncorroborated, but coupled the direction with a strong expression of opinion that G.. was not an accomplice. It was held that this constituted a misdirection in fact, though not in form, calculated seriously to prejudice the prisoner's case. The judgment of Norris J., who was the trial Judge and also sat as a member of the Appeal Tribunal, stated as follows: - .

"A careful consideration of the arguments addressed to us has satisfied me that I ought to have told the Jury that G. was an accomplice, and there is no doubt in my mind that that misdirection must have very seriously prejudiced the prisoner."

In the judgment of Petheram C.J., we find the following passage

"Had the Jury not been told that, in the opinion of the Judge, G. was not an accomplice, it may well be that, having heard his evidence as that of a person who had been in that character given a conditional pardon under section 337, and who had been twice warned in their hearing that the pardon was subject to revocation, they might, as asked to do by the Counsel for the prisoner, have so treated them in their own consideration of the case, and required corrobora

Click Here to Read the rest of this document