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KING v. FERNANDO H.R.S. et al.
NLR48V249
[Court of Criminal Appeal]
1947 Present: HOWARD C. J. (President), Jayetileke and Dias JJ.
THE KING v. H. R. S. FERNANDO, et al.
Appeals Nos. 34-35, with Applications 82-83.
S.C. 81- M. C. Avissawella, 35, 325.
Burden of proof -Prima facie
case established by prosecution- Explanation offered by accused- Proper
direction to jury as to burden of proof.
Where a prima facie case is made out by the prosection and the accused by his
defence offers an explanation the jury should be directed that the burden of
proof that the offence charged has been committed still on the prosecution and
that if upon a review of the evidence on both sides they are in doubt they ought
to acquit. It is a misdirection to tell them that because the evidence for the
prosecution established a prima facie case, the burden of proof is shifted to
the accused.
APPEALS
with applications for leave to appeal,
against two convictions in a trial before a judge and jury.
H. Wanigatunga (with him C .C . Rasaratnam and J. Pathirana),
for the 1st accused appellant.
M. M. Kumarakulasingham (with him K. Sivasubramaniam and M. E.
Dharmawardene) for the 3rd accused 2nd appellant.
E. L. W. de Zoysa, C. C. for the Attorney - General.
Cur. adv. vult.
250
June 3, 1947 HOWARD C.J -
In this case five persons were charged before a judge and jury of the offences
of -
(a) being members of an unlawful assembly, the common object of which was to
commit housebreaking by entering the house of Mary Nona,
(b) in the course of the same transaction committing murder by causing the death
of K. A. Pieris Singho, an offence which they knew was likely to be committed in
prosecution of the common object and
(c) in the course of the same transaction committing murder by causing the death
of K. A. Pieris Singho.
s
The jury by a unanimous verdict found the 3rd accused , that is to say, the 2nd
appellant guilty on counts 1 and 2 and the 1st accused that is to say the 1st
appellant guilty on the same counts by a majority of 5 to 2 , the 2nd 4th and
5th accused were found not guilty.
It has been contended by Counsel for the appellants that the verdict of Jury in
regard to the appellants cannot stand by reason of a misdirection in law in the
charge to the jury. On page 44 the following passage occurs:-
"if you find that you have a reasonable doubt about the prosecution it is your
duty to acquit the accused. If however you find the story for the defence to be
true or probably true in preference to the story for the prosecution, you have
to acquit the accused.
I forgot to tell you one little matter gentlemen. In regard to the defence the
burden of proof is on the defence the burden of proof is on the defence but you
will keep in mind that the burden of proof on the accused is not so heavy as the
burden of proof upon the prosecution who have establish their case beyond
reasonable doubt when you consider the two cases the prosecution case and the
defence case- and come to the conclusion that the defence version is more
probably true than the prosecution story then the defence has discharged its
burden. So that gentlemen, if you think that the defence is true or very
probably true in preference to the story for the prosecution, you will acquit
the accused".
Counsel for the appellants contend that this passage does not correctly
formulate the law in regard to the burden of proof , it is stated that the
burden of proof is on the defence and that the defence discharges its burden if
the jury come t the conclusion that the defence version is more probably true
than the prosecution story. Also, if they Jury think that the defence is true or
probably true in preference to the story for the prosecution they will acquit
the accused, The Jury should have been instructed to acquit the accused not if
their story was to be preferred
to the story for the prosecution,
but if hearing all the evidence they had a reasonable
