A Rare Quashing of a Conviction for Murder by the Privy Council in 1936
This case originated in the 1930s. It is included here
1) because I first heard about it in the mid 1960s at Welikade Prison on the manner in which the Privy Council looked at some cases referred to it from Ceylon. The judgment was not available then, and became available long afterwards with the advent of the Internet
2) because it was the first case of murder using chloroform in Ceylon and has some similarity to the Kularatne case of the 1960s, where arsenic was used for the first time. and both accused were acquitted in appeal.
A Rare Quashing of a Conviction for Murder
by the Privy Council in 1936
The case in which Stephen Christopher Seneviratne, a Cambridge graduate & a
non practicing barrister was named as the suspect in the murder of
his wife, Lilian Rosalin de Alwis, daughter of Daniel Albert de Alwis and Grace
Rosalin Dias Bandaranaike , & sister of Leo de Alwis, a son-in-law of Sir
Solomon Dias Bandaranaike, , attracted much attention in 1933, due not only
because of the high profile persons involved but also because of the galaxy of
medical personnel & legal personnel, who figured in the case. The case was
known as the Duff House Murder, as the couple lived at Duff House on Bagatalle
Rd. at the time.
Among the eminent medical personalities who gave evidence in this case were Dr.
S.C. Paul , F.R.C.S. and M. D. (Madras), Dr. T.S. Nair, L.R.C.P. and S.
(Edinburgh) and Faculty of Physicians (Glasgow), Dr. Milroy Paul, the son
of Dr. S.C. Paul, F.R.C.S. (England), M.R.C.P. (London) and M.D.
(London), Dr. J.S. de Silva, M.B. and Master of Surgery (Aberdeen), Dr. R.L.
Spittel, F.R.C.S. (England) and Dr. Karunaratne, M.D. of London, who was in
Government service as a pathologist
Deputy Solicitor General M.W.H. de Silva with Crown Counsel H.L. Wendt and
Police Superintendent J.R.G. Bantock appeared for the prosecution. Dr. M. V. P.
Pieris assisted them in the examination of the medical witnesses.
R.L. Pereira K.C., H.A.P. Sandrasagara K.C. and Stanley Obeysekera K.C., with
Eric Soysa and P.H.P. Jayatilleke appeared for Stephen Seneviratne.
At the trial presided over by Justice M.T.
Akbar, 52 witnesses were called and
two tendered but not examined. The statement of the appellant in the Police
Court on Feb ruary 10, 1934, was put in in accordance with the law but the
appellant did not elect to give evidence in his own defence.
He was found guilty by a 5-2 verdict of the
jury and sentenced to death, on June 14, 1934. The sentence was later
commuted to life imprisonment
On 29/7/1936, his appeal was allowed, and the
death sentence which had been commuted to rigorous imprisonment for life was
quashed. Stephen Seneviratne left the prison after spending 30 months there.
The judgment of the Privy Council can be
accessed at https://indiankanoon.org/doc/2464T. It makes interesting reading in view of the
complexities of this case and the opinions expressed in the course of the
medical evidence.
The judgment can also be accessed here :
https://lankalaw.net/wp-content/uploads/2024/12/040-NLR-NLR-V-38-THE-KING-v.-SENEVIRATNE.pdf
Retired Justice A. C. Alles has also gven a comprehensive account of this case in his Famous Criminal Trials Series and it ia ‘must read’ for anyone interested in this case.
Also read the following articles by Jayantha Gunasekera
https://www.sundaytimes.lk/140706/sunday-times-2/murder-by-chloroform-at-duff-house-bagatalle-road-105828.html
https://www.sundaytimes.lk/140713/sunday-times-2/murder-by-chloroform-at-duff-house-106655.html
This summary is based entirely on the Privy Council Judgment.
The Privy Council judgment contains the following paragraph about the state of
their marriage:
"The appellant is a Cambridge graduate who was called to the bar in
1919. His wife in 1933 was about 38 years old. She was a cousin of the
appellant and they had been married in 1923. They had one child, a boy aged 9,
called Terence, another child having died soon after birth. The deceased,
though short in stature (5 feet 3 inches) is described as huge.
For some years husband and wife
had not got on well together, constant quarrels arising out of various
questions, including questions as to property, whether they should live in a
rented house, and minor matters.
A number of letters found after
the death of the deceased amongst her belongings and purporting to be written
to the appellant in 1932, show that the deceased was making accusations against
the appellant in respect of a discharged servant girl, and of marital neglect
and indicate that the deceased had become somewhat abnormally unhappy and was
putting into writing expressions of unhappiness and of hope that she would not
live long, with more than one threat of ending her own life.
When she was angry with her
husband she was in the habit of shutting herself up in her room and at times of
taking no food.
On the other hand it was in
evidence that the appellant, though not infrequently quarrelling with his wife
and not attentive to her wishes, had never been seen by anyone to threaten his
wife with any form of physical violence.
Further, there was a substantial
body of oral evidence to the effect that the deceased had been threatening
suicide, and it is stated by two witnesses that some six weeks before her death
she had discussed suicide by chloroform with a relation, Mr. Charles
Seneviratne.
On the day before fier death a Mr. and Mrs. de Saram had come to dinner, and
the deceased was said to have become angry when she was told that the appellant
had taken the boy Terence with him to the house of a Mrs. Francis Seneviratne.
According to the statement of
the appellant before the Police Magistrate, he had a conversation with his wife
after the visitors had left in the course of which she said that he would
repent his action. "
It will be seen that all the ingredients necessary for an act of murder or
suicide to be committed were present in the situation described above.
Day of the Incident – 15. 10.
1933 Morning
There is no doubt that on the
morning of 15 October, 1932 the lady of the house was alive. Her maid and the
nurse looking after the child saw her , while 3 other servants heard a noise
which they believed to be that of the lady and 2 of them conveyed to the maid
that the lady required her. The time was around 6.30 a.m.
On entering her room, the maid
1. saw the master coming in from the child’s nursery;
2. noticed a poisonous and oily smell
3. noted that the lady who was
earlier sleeping and later lying on her side in the bed , was now lying
across the bed : head towards the wall and legs hanging over the side of the
bed.
4. saw the master going to the bed and starting to fan the lady
with a book,
5. was asked to fetch brandy & hot water bottles which were applied and
6. saw the master giving her artificial respiration.
7. saw a handkerchief near the lady's right hand, (this was put along with some
soiled linen on the dressing table, after the doctor saw her , and probably
sent to the laundry.)
The master sent the driver and the cook to bring Mrs. Bandaranayake and
the family doctor, Dr. S. C. Paul, who arrived around 7.30 am. Dr. Paul found
that the lady had been dead from about 6.30. He noticed some marks on her face.
On examining the room he found a bottle of aspirin tablets and Mr. Seneviratne
informed him that :
1. he had heard a noise from his wife’s room,
2. he thought that the boy had put his head between the rails of his cot,
3. that his wife had the night before complained of headache, and he had given
her the bottle of aspirin nearly full. The bottle if full, would have contained
25 aspirins, but now there were only 9 left.
To Dr. Paul, It appeared as if death was due to an overdose of aspirin. He
thought that the marks on the face was due to application of brandy and hot
water bottles.
However, Dr. Paul decided to inform the Police, the Coroner and the deceased's
brother, Leo de Alwis. Later he heard that the Police and the Coroner did not
suspect foul play. He therefore issued the death certificate - death due to
syncope or heart failure.
Day of the Incident – 15.10.1933
Afternoon
Dr. Paul’s son, Dr. Milroy Paul,
in the afternoon injected formalin into the body by way of preserving it, and
having noticed some marks on the face of the deceased, discussed it with his
father and stated that the marks must be due to chloroform . By then ,
Dr. Paul Senior had already issued the death certificate, as stated
above. Dr. Paul, Senior realised that if his son was correct, that he had
been misled into believing that the deceased had taken an overdose of aspirin.
Events on 16 October, 1933
The funeral took place.on the 16th.
It later transpired that :
1. the maid had found a small green bottle of smelling salts on the teapoy
where the deceased kept her books on the 16th;
2. the stopper was out and the bottle was empty;
3. she kept the bottle and the books on a chair;
4. she could not remember seeing it on the day the lady died.
5. it had also escaped the attention of Dr. Paul, Senior, and the lady's
husband, if it was there. Dr. Paul Junior also would have noticed it when
he came in the afternoon to inject formalin.
6. this was marked P 4 at the trial.
Events thereafter
These little discrepancies gave rise to a suspicion that the deceased had not
died from natural causes and this led to the deceased's brother voicing his
suspicions to the authorities.
Eventually, a post mortem was held on November 7, 1933, 21 days aftet burial.
The post mortem at which Dr. Paul Senior, Dr. Paul Junior and other doctors
were present provided the following findings;
1. aspirin was not found in the body,
2. the face marks were most probably attributable to chloroform
3. except on the face there were no marks whatever on the body of any
significance.
4. A slight bruising on the insides of the arms might have been caused in the
course of the movements made to attempt artificial respiration.
Based on the findings of the post mortem, police investigations were carried
out and the deceased's husband was charged with murder.
One of the vital issues that faced the investigators was the availability of
chloroform in the house, if death was due to inhalation of chloroform. In this
instance too, the deceased's husband provided the answer in his statement:
a)
1. about 21/2 months earlier he had bought an ampoule of chloroform in
connection with an operation on the leg of a buffalo at his estate in Chilaw:
2. it had not been used for this purpose and had been brought home and
3. it had been handed over to his wife.
b) his wife was in the habit of inducing sleep by chloroform
The Privy Counci judgment analyses the evidence given by the following
witnesses: Lady's maid (?), Nurse (21), Boy (14), Boy (18 - Maid's brother),
Driver (38), Cook (26), Boy (14) and arrives at the following conclusion : "It
is plain that this evidence, if believed, makes it impossible to suppose that
the appellant was with the deceased in the room at the time she uttered the
cry, and the learned Judge treated it as obvious that if the evidence of these
witnesses were believed, the appellant must be acquitted as having established
an alibi.
The story of the appellant himself in a statement made at an early stage of the
proceedings was that he was on the verandah where the chickens were when he
heard a groan, that he thought the noise was made by Terence, so went to the
child’s, room first. The explanation which he is said to have given at the time
for going to the child’s room first is that he thought Terence might have got
his head stuck fast between the rails of his cot, and he thought the noise
which he heard might have been due to this.
The case for the prosecution thus depended upon the Crown being able to
displace the evidence othe servants.
Analysis & Conclusion of the
Privy Council
The relevant section of the
Privy Council decision, quashing the conviction of the accused husband is
reproduced below and is based on their view that the jury was not properly
directed by the judge:
"It is apparent that this general tendency of the summing up was
to lead the jury to think that in effect they might convict the accused mainly
if not entirely on the view they formed of his conduct. Many of the matters
discussed under this head seem to their Lordships to be most uncertain in their
effect and unreliable as a guide to a conclusion.
There were points against the appellant. There were others in his favour. The
greater number were merely ambiguous.
It has always to be remembered that as the evidence showed the appellant was in
danger, even if suicide were found to be the cause of death, of incurring at
least moral blame, and it was quite consistent with innocence of murder that he
should prefer misadventure to be deemed to be the cause of death.
Still if there had been other evidence of weight their Lordships do not doubt
that a jury might properly have taken into account these matters of conduct.
But in this case at. the end of the evidence the result was that there was no
direct evidence justifying a conviction and for reasons already given there was
no medical or other circumstantial evidence justifying a conviction; and to
arrive at an adverse verdict on the strength of opinions formed as to the
conduct of the accused was, their Lordships think, to act upon the merest
scintilla of evidence and to be impermissible.
On these facts the advice proper to be tendered to His Majesty seems to their
Lordships to be no doubtful matter.
The submission of the Attorney-General was well founded that it is not for this
Board to interfere because its conclusion as to guilt or innocence might differ
from that of the jury.
But in the view of their Lordships, there are here no grounds on the evidence
taken as a whole, upon which any tribunal could properly as a matter of
legitimate inference, arrive at a conclusion that the appellant was guilty and
any conclusion on the available materials would be, and is, mere conjecture or
guess, which are not, in law or justice, permissible grounds on which to base a
verdict.
The only proper direction to the jury in these circumstances was that they must
return a verdict of not guilty or that they could not safely or properly find
any other verdict. The direction was, as has been' seen, quite other than this,
and the verdict, in the opinion of their Lordships, cannot stand.
Having regard to this conclusion on the main issue in the appeal, it is
strictly unnecessary to consider he other points raised, but in the circumstances of the case, and having regard to the general importance of some of the
matters debated at the Bar, their Lordships propose to deal shortly with these
points also. "
It is pertinent to summarize some vital facts for a better understanding of the
case:
1.. The maid arrived on being told that the lady required her. The husband
arrived at the same time after hearing a groan, which he thought was made by
their child.
The maid sensed a poisonous and oily smell in the room. She noticed that the
lady was now lying across the bed, with the head towards the wall,
2. The husband fanned her, sent her to fetch brandy and hot water bottles
, applied them and gave artificial respiration.
3. Dr. Paul arrived around 7.30 a.m. and found the lady dead. He noticed a bottle
of aspirin tablets . It contained 9 tablets. The husband informed that the wife
complained of a headache the previous evening and he gave it to her , almost
full ie about 25 tablets. This led the doctor to believe that death was due to
an overdose of aspirin.
4. Dr. Paul Junior injected formalin into the bodyin the afternoon, after it
was known that foul play was not suspected by the Police. He noticed marks on
the deceased's face, and conveyed to his father that death may be due to
chloroform
5. The body was buried thereafter.
16.10.1933, the day after the incident
1. The maid found a small green bottle of smelling salts on the teapoy
where the lady kept her books.
1. She first saw it on the 16th.
2. The stopper was out and it was empty
3. She could not remember seeing it on the dressing table
4. She took the bottle and kept it on a chair along with the books.
7.11. 1933 , the Post Mortem
1. Body was exhumed and Post mortem was held.
2. No trace of aspirin was found
3. Cause of death was found to be inhalation of chloroform.
Relevant points in the Statement of the deceased's husband to Police Magistrate
after the Post Mortem
1. He had a conversation with his wife after the visitors had left on
14.10.1933 and in the course of it she said that he would repent his
action of taking the child to a relative's place, a matter over which she had
expressed her displeasure.
2. His wife used chloroform to induce sleep.
3. He had handed over to her an unused ampoule of chloroform, 2 1/2 months
earlier which he had procured for use on animal in his farm, but which was not
used.
Suspicious conduct of the husband of the
deceased
1. Since the maid noticed a poisonous and oily smell as she entered the lady’s room, the husband who arrived at the same time could not have failed to sense the smell, but he made no mention at all to Dr. Paul, Senior..
2. Was the brandy used to genuinely revive her or to mask the smell of chloroform?
3. Why did he come out with a story of a bottle of aspirin which was almost full, but now more than half empiy, to make Dr. Paul Senior believe that death was due to an overdose of aspirin. when it was found to be false at the post mortem?
4. Who introduced a bottle of smelling salts to the room on the 16th? If it was there on the 15rh, the husband hinself would have pointed out, and both Dr. Paul Senior and Dr. Paul Junior would not have missed it.
5. After it was known that chloroform had caused her death, the husband claimed that she used chloroform to induce sleep.
6. Relevant points in the Statement of the deceased's husband to Police Magistrate after the Postmortem
a) He had a conversation with his wife after the visitors had left on 14.10.1933 and in the course of it she said that he would repent his action of taking the child to a relative's place, a matter over which she had expressed her displeasure.
Can this claim, made after the post mortem, be
believed, as it was meant to imply that either she would kill him or commit
suicide to spite him?
b) He had handed over to her an unused ampoule of chloroform, 2 1/2 months
earlier which he had procured for use on animal in his farm, but which was not
used.
If true, was it the normal thing to do, to bring
home an unused ampoule of chloroform and hand it over to his wife, with whom
his relations were already strained ? Or was it his intention to allow her to
use it on herself?
c) His wife used chloroform to induce sleep.
How did he know that his wife took chloroform to
induce sleep? Was she using the chloroform he had given? Did he not consider it
strange and risky?
If he knew that his wife was taking chloroform, he
would have known its smell. How did he miss the smell which the maid said was
poisonous and oily?
If she was taking chloroform, the maid would have known about
it and its smell, and would not have had any difficulty in identifying the
poisonous smell she sensed?
None of the above matters could be clarified from the husband, as he chose not to give evidence at the trial.
Evidence of the servants
The jury would not have failed to note the following matters when considering the evidence of the servants :
Any direct evidence incriminating the husband could have come only from the servants. They were 3 boys aged 14,15 and 18, nurse aged 21, cook aged 28, driver aged 38, and the maid, probably an adult.
Their version of the events that took place would have been recorded only after the findings of the post mortem held 21 days later. Also during that period they continued to live with the master in the same house.
.
Even if they became aware of such evidence , and even if they remembered the sequence of events that took place 21 days earlier, the question arises whether they would have had the mental strength to give such evidence against their master, at the time their statements were recorded.
While as layman, members of the jury could have considered such matters, the law does not permit such speculation.
In the light of the above, and in the light of the judge's summing up, it is
not surprising that five members of the jury found him guilty based not only on
the entirety of the evidence led at the trial but also on the acts of omission
and commission of the husband and the weight to be attached to the evidence of the witnesses.
It would also have been difficult for the judge, to direct the jury to find him
not guilty or find the charges not proven, as suggested in the Privy
Council Decision, for the same reason.
The accused husband was lucky that the law was on his side.
End.
Comments
Post a Comment