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KING v. PUNCHI BANDA et al
NLR47V203
[COURT OF CRIMINAL APPEAL]
1946
Present: Cannon J. (President),
Jayetileke and de Silva JJ.
THE KING v. PUNCHI BANDA, et al,
Application 66-68-M. C. Kandy, 17, 203
Evidence-Statement to
Magistrate , by accused ,at preliminary stage of inquiry-Admissibility, at
trial, against co-accused.
Criminal Procedure-Trial for murder-several accused represented by one
Counsel-Conflict of defenses, during trial-Adjustment of trial desirable.
In a prosecution for an indictable offence, a statement made
by an accessed to the Magistrate is relevant evidence against the co-accessed
if, at the trial, the former gives evidence reaffirming the statement he made to
the Magistrate.
Where, in a trial for murder, two or more accused are
represented by one Counsel and, in the course of the trial, it is found, for the
first time, that the defenses of the accused conflict, the proper course for the
Judge to take is to adjourn the trial to enable the accused?s Counsel to
reconsider his position.
Per Cannon J.-? This seems an
appropriate occasion to mention the duties of assigned Counsel when Counsel is
assigned to represent two or more accused in the same case whose defences
conflict. We think that if the defences of such accused have conflicted at any
stage, even though the accused endeavor to reconcile them when they are in
consultation with assigned Counsel, nevertheless assigned Counsel should bring
to the notice of the Register of the Court the fact that the defences have at
some stage conflicted, in order that the Registrar may advice the Judge to have
the accused separately represented.?
APPLICATIONS,
by three accused, for leave to appeal against their convictions by a Judge and
Jury.
H. Wanigatunge, for the first and second accused,
applicants.
M. M. Kumarakulasingham, for the third accused,
applicants.
T. S. Fernando, C. C., for the Crown.
May 14 , 1946. CANNON J.-
The case for the crown was that the three appellants went to
a house in their village on December 15, 1944, which was inhabited by an elderly
man named Kira and a little girl aged seven, named Lisa, whose death was the
subjected of this trial; that they went there for the purpose of theft as Kira
was reputed to be a mister and that when Kira offered resistance they murdered
him and, further, murdered the little girl in the order that she should not be a
witness against them. The Jury found all three accused guilty of murder. In
considering the points raised on behalf of the appellants it is necessary to
recount something of the events that preceded the trial and of the conduct of
the trial. The accused were not arrested until January 29,and on January 31,
each expressed a wish to make what has been called a ?confession? to the
Magistrate. The first and second accused?s so-called confession took the form of
a total denial of any knowledge of what had happened. The third accused alleged
that the other two had murdered the little girl and that he, though one of the
party of three which went to the house ,was not a party to any killing; that he
went there merely to steal and did so under duress of the other two. Obviously,
then, the defences of the first and second accused were in conflict with that of
the third. At the trial, however, all three accused were represented by one
Counsel, and the statements which the three accused had made to the Magistrate
were tendered in evidence by the prosecution. The attitude of the defense to the
evidence of these statements is shown by the cross?examination of the two police
Officers, who it was suggested had endeavored to persuade each of the accused to
make a statement implicating the other two on the promise that if he did so he
would be released, and, further ,that the first and second accused declined to
do so but the third accused gave way and signed a statement which was dictated
to him by one of the Polic
