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FERNANDO M.J. v. THE QUEEN
NLR54V255
[COURT OF CRIMINAL APPEAL]
1952 Present : Swan J. (President), H. A. de Silva J. and L. M. D.
de Silva J.
M. J. FERNANDO et al, Appellants, and THE QUEEN,
Respondent
APPEALS 67-70 WITH APPLICATIONS 99-102
S. C. 17-M. C. Colombo, 11,415
Charge of murder-Several
accused-Common intention-Sudden fight-Summing-up -" Unreasonable verdict".
A jury should never be directed in a way which opens for them the door to
conjecture. A trial Judge, by suggesting an unsustainable element of evidence in
favour of an accused may, by rendering a verdict founded on that element
unreasonable, make the verdict itself unsustainable.
Where, therefore, in a prosecution of several persons jointly for murder, no
evidence has been given which could raise the issue of a sudden fight, it is not
the duty of the Judge to invite the jury to speculate as to sudden fight.
It is very rarely, if at all,
that a common intention to kill in the circumstances of a sudden fight can be
established.
No direction as to common intention can be adequate where the law is stated in
general terms and not applied closely to the particular facts of each case. The
inference of common intention must be not merely a possible inference but a
necessary inference, i.e., an inference from which there is no escape.
Obiter : In a summing-up, a general statement of the law followed lay a
statement of the facts is undesirable. The trial Judge should apply the relevant
law to the relevant facts in the course of the analysis of those facts.
APPEALS,
with applications for leave to appeal, against certain convictions in a trial
before the Supreme Court.
Colvin R. de Silva, with L. G. Weeramantry and J. R. M. Perera,
for the accused appellants.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 15, 1952. L. M. D. DE
SILVA J.-
In this case the 1st to the 5th accused have been convicted on the 3rd count of
an indictment presented against them which was to the following effect :-
" That at the time and place aforesaid (17th December, 1950) . . . . you
did commit murder by causing the death of the said Gorakanage Nicholas Peiris
Gunawardene ; and that you have thereby committed an offence punishable under
section 296 of the Penal Code. "
The verdict brought in by the jury on this count was one of culpable homicide
not amounting to murder " on the ground that there was a sudden fight ". They
have been acquitted on count 1 in which they were charged with being members of
an unlawful assembly the common object of which was to commit murder and on
count 2 in which they were charged with murder committed by one or more of the
members of the unlawful assembly. There were no other counts.
There are several disturbing features in this case. There was for instance blood
found on the shirt of the deceased which according to expert medical evidence
could not have been the blood of the deceased or any of the assailants. It was,
if the expert evidence was accepted, completely unaccounted for by the
prosecution evidence. It was also difficult to reconcile the prosecution
evidence with several wounds found on the first accused. There were further
difficulties.
All these features were very fairly and completely put by the trial Judge to the
Jury but there is one portion of the summing-up, on which
with all respect to him we feel
ourselves reluctantly compelled to acquit the accused-all the more so because it
is the portion most material to the verdict which has been brought in.
The evidence of several witnesses was subject to various infirmities all
carefully mentioned by the learned trial Judge in the course of his summing-up.
These difficulties and infirmities must have been responsible for his having
said to the jury " I do not think you can convict any of the accused unless you
can say that the evidence of Narayan and the evidence of Sirina Pieris is true "
and he went on to warn them t
