[IN THE COURT OF CRIMINAL APPEAL]

1959 Present: Basnayake, C.J. (President), Pulle, J., and
H. N. G. Fernando, J,

THE QUEEN v. E. HANDY

Appeal No. 50 of 1959, with Application No. 61

S. C. 32-M. C. Galle, 5400

    Trial before Supreme Court-Jury's verdict of acquittal-Judge's disapproval of it- Discharge Of jury on that ground-Retrial-Plea of autrefois acquit-Must be tried by jury-Failure of accused to raise the plea-Power of court of Criminal Appeal to consider the plea-Miscarriage of justice-Court of Criminal Appeal Ordinance. s. 5 (l)-Criminal Procedure Code,ss. 6, 230, 247, 248, 249, 330, 331.

Section 230 of the Criminal Procedure Code does not entitle the presiding Judge to discharge the jury in a case in which the Judge disagrees with the jury's view of the facts.

Where the jury's verdict of acquittal is not duly entered on account of the Judge's disapproval of it, the accused is entitled to raise the plea of autrefois acquit if he is tried again for the same offence. The plea is one that must be tried by the jury in accordance with the practice in England.

Where the accused fails to raise the plea of autrefois acquit timeously at the trial, the Court of Criminal Appeal may consider that defense and acquit him under section 5(I) of the Court of Criminal Appeal Ordinance on the ground of miscarriage of justice.

APPEAL, with application for leave to appeal, against a conviction in a trial before the Supreme Court.

Colvin R. de Silva, with H. A. Chandrasena, M. L. de Silva and E. B. Vannitamby (assigned), for Accused-Appellant.

Ananda Pereira, Acting Senior Crown Counsel, for the Crown.

Cur. adv. Vult.

September 8, 1959. BASNAYAKE, C.J.-

This is an unusual appeal. On 1st April1959 the appellant was tried on charges of murder of Danny Dissanayake and attempted murder of Albert Dissanayake. In the course of the trial the appellant gave evidence on his own behalf and called two witnesses in his defense.

At the conclusion of the learned trial Judge's summing-up the jury retired to consider their verdict, What took place thereafter is the recorded in the transcript of the proceedings-

"Clerk of Assize:

387. Q: Mr. Foreman, are you unanimously agreed upon your verdict as regards each of the counts in the indictment

"Foreman: Yes.

"Clerk of Assize:

388. Q: By your unanimous verdict do you find the prison guilty of the offence of murder on count No.1?

"Foreman: No.

"Clerk of Assize:

389. Q: Do you find him guilty of any other offence?

"Foreman: No.

"Clerk of Assize :

390. Q: By your unanimous verdict do you find the prisoner guilty of attempted murder on count No.2?

Foreman: No.

"Clerk of Assize:

391. Q: Do you find him guilty of any other offence?

"Foreman: No.

"Clerk of Assize:

392. Q: That means you do not find this prisoner guilty of a offence on this indictment?

"Foreman: Yes.

"Court to Clerk of Assize:

Don't record this verdict. I refuse to accept this verdict."

The learned trial Judge then made the following order:-

"The jury in this case has returned a verdict of not guilty either offence. The evidence in this case is quite clear. The defense in this case was palpably false. A part of the evidence for the defense went to prove the prosecution case, I can only conclude that jury are neither understood the law on which I gave them adequate direction nor understood the nature of the evidence and the implications arising there from. In the circumstances I do not think it is either necessary or desirable to ask the jury to reconsider the verdict.

and acting under the provisions of section 230 of the Criminal Procedure Code, I think the interests of justice require that the accused he tried before another jury from a different panel."

Thereafter the appellant was tried by another jury before the same Judge on 15th April. At that trial also the appellant gave evidence on his own behalf and called one of the witnesses whom lie had cal