SIRI.MAXE, J.—MarikJcar v. Tht Queen
[Court of Criminal Appeal]
1969 Present: H. N. G. Fernando, C.J. (President), Sirimane, J.,
and Alles, J.
M.A. MARIKKAR, Appellant, and THE QUEEN, RespondentC. C. A. No. S6 of IOCS, with Application No. 126S. C. 170 of 1968—M. C. Pnttalam, 3943
Charge oj murder—Plea of intoxication—Proof—Whether intoxication can result fromthe smoking of ganja—Misdirection.
Intoxication affecting the question of intention to commit an offence may bocaused by the smoking of ganja.
Appeal against a conviction at a trial before the Supreme Court.
E. R. S. R. Coomaraswamy, with T. Jokanalhan, M. S. Azeez, G. B.Walgampaya and E. St. N. D. Tillckeralne (assigned), for the accused-appellant.
E. R. de Fonseka, Senior Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 26, 1969. Sirimane, J.—
The appellant was convicted of the murder of his 2 little sisters, aged 10and 11 years, by a divided verdict (5 to 2) of the Jury.
The appellant had shot the 2 girls in the early hours of the morningwhile they were asleep', and the prosecution could suggest no motive forthis act.
SIRIMANE, J.—Marikkar t The. Queen
■ ' The evidence shows that the appellant looked after his sisters, and was••very fond of them.
According .to the evidence of the appellant ho had taken a bottle ofbeer and some arrack on tlie previous night, and had smoked * ganja *thereafter. One part of his evidence indicates that this smoking had,• been done some time after midnight.• •
There is no doubt that ganja is a powerful intoxicant, and may evenby itself cause a state of intoxication in which a person may not know thenature of his act, or that what he was doing is wrong or contrary to law.
The evidence of Dr. Sittampalam, Psychiatrist, on this point is asfollows :—
“ To Court :
Q. What do you understand by intoxication ?
A. The state that is produced in the mind by drugs.
Examination contd. :
Q. Poisoning by alcohol ?
A. That is one form of intoxication.
Q. Alcoholism is a form of narcotic poisoning ?
Q. Ganja is also a narcotic ?
Q. Can acute confusional insanity ariso from the effect of ganjasmoking ?
A. Yes, sometimes. ”
So that the question of intoxication arose on the evidence in this case.Unfortunately the Doctor had been questioned at length a3 to whetheron the evidence available, the appellant was of unsound mind, at the timehe committed the act, and the Doctor expressed the opinion that heprobably was not. But, his opinion was not clearly sought on thequestion of intoxication. According to the evidence, the appellant had,immediately after he fired the shot, said, I have shot”, and again,Have I shot ?”. The Doctor’s evidence when these facts were placedbefore him is' of significance and is as follows :—
“ Q. The 3rd factor is that having shot the children he first said “ Ihave shot ” and later said “ Have I shot
A. It. indicates a certain doubt and that there wasn’t fullawareness. There seems to have been some doubt whetherhe had done it or not and that is in keeping with a confusionalstate ”
SIRIMANE, J.—Marikkar t>. The Queen
The learned Judge, in his charge to the Jury dealt with the medicalevidence in so far as it related to insanity and imsoumlncss of mind. Butjwhen he came to the question of intoxication, he always told the Jury thatthere must be evidence that the accused was drunk', for example, thelearned Judge said :—
“ If you hold that at the time he fired the gun, he was so drunk—not merely drunk, but so drunk—as to have been incapable offorming a murderous intention, imputing to a drunken man theknowledge of a sober man, yon can only reduce the offence that farand no more. ”
And again —
“ You will remember that I told you, gentlemen, that intoxication mayreduce the offence of murder to one of culpable homicide not amountingto murder ,,,,,,, You must have evidence that r.t the time hefired he was so drunk that he was incapable of forming a murderousintention. ”-
A little later he said :—
if you take the view that at G o’clock that morning he was
so drunk as to be incapable of forming a murderous intention, then theoffence of murder will be reduced from murder to one of culpablehomicide not amounting to murder. ”
“the P.R.O. says that he was not smelling of alcohol
The question is, was he drunk and not only was he drunk,
was he so drunk as to be incapable of having a murderous intentionwhen he used that gun. I will put it in a different way : was he sodrunk that he was incapable of intending death
Just before he concluded his charge, the learned Judge said :—
“ First you have to ask yourselves—was he drunk that morning—ifhe was drunk, was he so drunk as to be incapable of forming a murderousintention. ”
The Jury were therefore repeatedly told that the accused must bedrunk in order to reduce the offence t-o culpable homicide not amountingto murder. They were not directed to consider whether a state ofintoxication might have resulted from the smoking of ganja.
A lay jury may very well have thought that the law recognised only“ drunkenness ” resulting from the intake of an excess of alcoholic .liquor as an extenuating factor. Had they been correctly directed on thispoint, it is impossible to say, on the facts of this case, that theywould have found the appellant guilty on the capital charge.
We therefore altered the conviction to one of culpable homicide notamounting to murder, and sentenced the appellant to ten (10) 3*ears''rigorous imprisonment on each count, the sentences to run concurrently.
M. A. MARIKKAR, Appellant, and THE QUEEN, Respondent