Podisingho Et Al V. The King

[COURT OF CRIMINAL APPEAL]

1951 Present: Dias S.P.J. (President), Basnayake J.,
Gunasekara J., Pulle J. and de Silva J.

PODISINGHO et al., Appellants, and THE KING, Respondent

 Appeals 45-18 with Applications 61-64 of 1951

S. C. 32-M. C. Ratnapura, 18,478
 

Criminal procedure-Joint trial of several persons-Discretion of Court to order separate trials-Criminal Procedure Code, ss. 184, 230.

Criminal Conspiracy-Circumstantial evidence-Abetment-Summing up-Proper direction to jury-Penal Code, s. 113B-Court of Criminal Appeal Ordinance s. 5 (1), proviso-Criminal Procedure Code, s. 243.

Five persons were being jointly tried before a Judge and Jury. On the fifth day of trial the second accused took ill and it was reported that he would be unable to attend Court for about 28 days. Thereupon, the presiding Judge made order that the trial of the other four accused should proceed and that the second accused be tried separately.

Held (by the majority of the Court), that section 184 of the Criminal Procedure Code gave the Court the power to make such order. The discretion vested in the Court to order a separation of trials may be exercised not only before the accused is given in charge of the jury but also at any subsequent stage.

Held, further (by the majority of the Court), (i) that in a prosecution for criminal conspiracy, it is the duty of the trial Judge to explain to the jury in his summing-up the law relating to the offence of criminal conspiracy; merely reading the Penal Code definition of the offence is insufficient. Where there is such non-direction, there is a miscarriage of justice and the proviso in section 5 (1) of the Court of Criminal Appeal Ordinance cannot be applied.

(ii) that in a case of circumstantial evidence it is the duty of the trial Judge-to tell the jury that such evidence must be totally inconsistent with the innocence of the accused and must only be consistent with his guilt.

(iii) that in a prosecution for abetment the trial Judge should, in his summing-up, explain to the jury the law relating to abetment.

APPEALS, with applications for leave to appeal, against certain convictions in a trial before the Supreme Court.

M. M. Kumarakulasingham, with J. C. Thurairatnam and D. W. F, Jayasekera, for the 1st, 3rd and 4th accused appellants.-The prosecution asked for a separation of the trial under section 184 of the Criminal Procedure Code. Section 184 has no application to the present case. That section enables a trial Judge to exercise his discretion as to whether there should be a separation of trial. The Judge can only exercise his discretion before the accused persons are given in charge of the Jury, In the present case the Judge acted when the time for the exercise of his

discretion had already passed. Section 230 of the Criminal Procedure Code makes specific provision for a case like the present. The Jury should have been discharged in regard to all the accused and a new trial ordered. See In the Matter of the Trial of Thomas Perera alias Banda [(1927) 29 N. L. R.6. ] and The King v. Vidanagamage Edwin [(1947) 48 N. L. R. 211]. As regards English procedure see R. v. Ahearne [ (1852) 6 Cox. C. C. 6] and R. v. Marian Grondkowski and Henryk Malinowski [(1946) 1 A. E. R. 559]. English cases, however, are not applicable as section & of the Code comes in only where no specific provision is made in the Code. On the question of " prejudice " under the proviso to section 5 (1) of the Court of Criminal Appeal Ordinance it is submitted that the trial in the present case is a nullity because of absence of jurisdiction. The proviso does not therefore apply. Even if the trial is not a nullity it is submitted that in a conspiracy case evidence must be looked at as a whole in order to ascertain the common intention. The absence of the second accused caused prejudice to the other accused.

The trial Judge failed to explain the law of c

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