Thangavtlu v. The Queen
[COURT OF CKIAIINAL APPEAL]
1969Present : Sirimane, J. (President), Ailes, J., and
THANGAVELTJ, Appellant, and THE QUEEN, RespondentC. C. A. No. 12 of 1969, with Application No. 16
S.C. 97/68—M. G. Galle, 956/U
Charge of murder—Drunkenness of accused—Evidence of it given by prosecutionu-ilness—Duly of Judge to give adequate directions on defence of drunkenness—Whether expert evidence is necessary to prove drunkenness.
Whore, in a prosecution for murder, thero is evidence of drunkenness of theaccused in the evidence led by the prosecution, it is the duty of the trial Judgeto givo adequate directions to the jury in regard to the defence of drunkenness.It is not necessary that some kind of expert evidence should be led in order toprove a state of drunkenness.
-tJLPPEAL against a conviction at a trial before the Supreme Court.
E. S. E. Goomarasxcamtj, with S. C. B. Walgampaya and (assigned)D: A. E. Thevarapperuma, for the accused-appellant.
A. G. de Zoysa, Senior Crown Counsel, for the Crown.
[1S94) A. C. 347.
SIRE1XAXE, J.—Thangavelu v. The Queen
March 28, 1969. Sekemante, J.—
Learned counsel for the defence lias urged that the conviction formurder by a divided verdict (6 to 1) of the Jury should be reduced toa conviction of culpable homicide not amounting to murder on theground of the drunkenness of the accused-appellant.
There was evidence of drunkenness in the evidence led by theprosecution. The widow of the deceased stated that the accused was“thoroughly drunk”. She said this twice over in the course of her evidence.Witness Subramaniam stated that immediately after the incident hesaw the accused staggering and that he appeared to be drunk. Therewas also evidence that the accused habitually takes wine and that thisincident took place on pay day, the accused being a labourer on anestate. It was explained at the trial that the wine the accused takeswas spirits of wine and that he was commonly called “ Wine Tangavelu ”.On this day after having taken liquor he had tried to injureone of his own little children.
In the course of the trial a plea of culpable homicide not amountingto murder was offered by the defence, and accepted by the Crown, butthe learned Judge did not permit the acceptance of the plea because hethought that the evidence of the widow indicated that the accused hadbeen lying in wait for the deceased. The evidence of the widow was tothe effect that the deceased had taken the accused’s wife and childrento the Conductor’s office, and was returning when the accused whowas in the verandah in front of his own line room attacked the deceased.She added that he was waiting for the deceased. This was an inferencethat she had drawn. The learned Judge did not tell the jury that thewidow was merely drawing an inference that the accused was “ waitingfor her husband ” from the fact that the accused was seen in front ofhis own line room. He dealt with this evidence in his charge as follows :
“ In that connection there is the evidence of the woman Mariaththawho says that the accused was waiting for the deceased and sprangupon him. If that evidence is true, it shows some kind of premeditationon the part of the accused. The accused had decided, r As soon ashe comes this way I will do this and that will be the end of him ’.
If that is your estimate of his mind, it is dearly premeditatedmurder."
We are in agreement with the contention made by counsel for thedefence that the evidence relating to drunkenness had not been placedin its proper perspective by the learned Judge in his charge to the Jury.
In referring to the evidence of the widow on drunkenness the learnedJudge told the Jury that she was not an expert. This was an unfortunate
S Hi IM AJNTE, J.—Than/javelu v. The Queen
remark which may have led the Jury to believe that some kind ofexpert evidence was necessary in order to prove a state of drunkenness.He went on to say :
“ Mariaththa says, as far as sho could say, the man was drunk,thoroughly drunk, to use her own phrase. Whether she is exaggerating,that is a matter entirely for you to consider. Anyway there is thatevidence that the man had taken alcohol. The evidence of the otherman who says the accused when he came to the bungalow with bloodstains on his sarong ” (he was here referring to the evidence of Subra-maniam) “ is that the accused was staggering and he appeared tobe drunk, but that ivas after the killing of Muniandy. So the fact thatthe man was staggering thereafter may not be in consequence of theliquor ho had taken, but because the mind has been upset upon thedeed committed.”
The learned Judge also stated :
“ And in this case there is no evidence of any witness who has seenthe accused drink. It may be that he has partaken of some liquor.But, it may be a small quantity and if you, when you consider thataspect of the accused being drunk, consider that according to theevidence of Mariaththa, you will find that he was quite capable ofwaiting in the line room and watching Muniandy coining back.”
There was also evidence that immediate^ after the incident theaccused threw away the axe in the presence of the deceased’s widowand others, and the Police found this weapon some 10 feet away fromthe body of the deceased. The learned Judge dealing with this evidencesaid :
“ Then there is also this fact, having done this foul deed what didthe accused do ? He throws the axe into the paddy field. You wiask yourselves, ‘ Why did he throw it ’ ? and perhaps you will answer,the answer is entirely yours, ‘ He threw it for the purpose of concealingthe weapon which he used on this day’.”
He then went on to tell the Jury that they could infer a murderous intentionfrom the fact that the accused threw away the katty. Wc arc of opinionthat in the circumstances of this case, the directions given in regard tothe defence of drunkenness were inadequate and the evidence relatingto this question was not fairly placed before the Jury.
We quash the conviction of murder and substitute a conviction ofculpable homicide not amounting to murder and impose on the appellanta sentence of ten (10) years’ rigorous imprisonment.
THANGAVELU, Appellant, and THE QUEEN, Respondent