STEPHEN SENEVIRATNE Vs. KING

JUDGEMENT

(1.) This is an appeal by special leave from a verdict and sentence given and passed in the Supreme Court of the Island of Ceylon on 14 June 1934. The appellant was charged with having murdered his wife on 15 October 1933, and after a trial lasting 21 days he was found guilty by a majority of five to two of the jury, one of the five in the majority recommending him to mercy. Sentence of death was passed but this sentence was commuted to one of rigorous imprisonment for life.

(2.) The main ground of the appeal is that on the evidence a verdict of guilty could not properly or safely be found and that the jury ought to have been so directed, and that in these circumstances such grave injustice had been done as to require the interference of His Majesty. The appellant also complained of certain specific matters in the conduct of the trial as causing or contributing to the miscarriage of justice. Such matters were: that a very large amount of hearsay evidence was admitted and was used as evidence of fact; that the learned Judge misconstrued S. 106 of the Ceylon Ordinance No. 14 of 1895 relating to the law of evidence and in consequence gave an erroneous direction to the jury as to the onus of proof; that the learned Judge used language to the jury in his charge which was calculated to put undue pressure upon them and to prejudice the accused. Complaint was also made, though this was not one of the specific reasons assigned for the allowance of the appeal, that after the evidence was concluded the hearing was re-opened and further heard at the appellant's house, where the death of his wife occurred, in a manner that was entirely irregular and was not permitted by law. There is no uncertainty as to the principle upon which this Board acts in the matter of the review of a criminal case. The statement of the principle most useful for the purpose of this case appears in the judgment delivered by Lord Sumner in Ibrahim v. Emperor, 1914 PC 155 at p. 614, and is as follows :

(3.) Leave to appeal is not granted "except where some clear departure from the requirements of justice" exists: Riel V/s. Reg., (1885) 10 AC 675; nor unless "by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done :" Dillet's case, (1887) 12 AC 459. It is true that these are cases of applications for special leave to appeal, but the Board has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing: Riel's case (2) and Ex parte Deeming, (1892) AC 422. The Board cannot give special leave to appeal where the grounds suggested could not sustain the appeal itself; and, consequently, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even irregularity as such, will not suffice : Ex parte Macrea, (1893) AC 346. There must be something which, in the particular case, deprives the accused of the substance of a fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future : Reg. V/s. Bertrand, (1867) 1 PC 520.