HOWARD C J.—The King v. Albert Appuhamy.
[Court of Criminal Appeal.]
1940Present; Howard CJT., Keuneman and Cannon JJ.
THE KING v. ALBERT APPUHAMY.
28—M. C. Kandy, 65,526.
Misdirection of lain—Defence not set up by prisoner or his Counsel—Wheredefence arises on evidence—Duty of Judge.
Failure on the part of a prisoner or his Counsel to take up a certainline of defence does not relieve a Judge of the responsibility of putting tothe jury such defence if it arises on the evidence.
HIS was an application for leave to appeal against the conviction ofthe applicant who was convicted of murder at the Midland Assizes
and was sentenced to death.
P. A. Senaratne, for the accused, applicant.—The accused had no legalaid in fhe drafting of the petition which is very meagre. There are twopoints of law arising in this case. On the evidence the Proctor whodefended the accused argued that the accused stabbed the deceased inthe course of a sudden fight and the learned Judge in his summing up tothe jury put in addition the defence of grave and sudden provocation.But the evidence given by the accused coupled with his statutory state-ment disclosed that he had acted in self-defence though he had exceededthat right. This defence was not put to the jury. It is the duty of theJudge to put to the jury every defence that arises out of the evidencealthough it has not been put forward by the accused. See The King v.Hopper1 and R. v. Dinnicks. The learned Judge in his summing, drewthe attention of the jury to the accused coming to the scene of themurder with his clasp-knife open, but failed to mention that in his evidencehe said that he had it open for the purpose of peeling an arecanut. Thisevidence negatives the intention that the accused came prepared to stab thedeceased.
Nihal Gunesekera, C.C., for the Crown.—Whatever be the defenceput forward by Counsel, it is for the Judge to put such questions tothe jury as appear to him properly to arise on the evidence (R. v. WilliamHopper’.) But a Judge is not bound in law to put a particular defenceto the jury if that defence has not been made out and the facts do notamount in law to proof of the defence (R..v. James Honeyands ‘).
The burden of proving that he acted in the exercise of the right ofprivate defence lies on the accused (Evidence Ordinance, section 105).
On the evidence of the accused the right of private defence did not arisein law (Penal Code, section 95).
Cur adv. vult.
September 24, 1940. Howard C.J —
This application for leave to appeal against conviction is based on twogrounds as follows : —
(a) That there was misdirection in law inasmuch as the learned Judgein his charge failed to direct the jury on the law of self-defence;
■ (1915) 2 K. B. 431.3 11 Cr. App. R. 136.
– (1909) 3 Cr. App. R. 77.J 10 Cr. App. R. 60.
HOWARD C.J.—The King v. Albert Appuhair.y.
(b) That there was misdirection on the facts inasmuch as the learnedJudge omitted in his charge to refer to that part of the evidenceof the appellant in which the latter stated that he was using hisknife in the boutique to cut an arecanut. It was submittedthat this evidence negatived the suggestion that he came to theboutique armed with an open knife with which he intended tostab the deceased.
We are of opinion that there is no substance in the second ground.The evidence of the appellant was before the jury and there is no reasonfor suggesting that his reference to the use of the knife to cut the arecanutwas not present to their minds when they reached their verdict. Thematter was not of such transcending importance as to make it incumbenton the Judge to mention it in his summing up.
The first ground raises a question of considerable importance. Thereis no suggestion in the evidence tendered by the Crown that the appellantin stabbing the deceased was exercising a right of private defence. More-over the Proctor who appeared on his behalf did not raise this plea butargued that he stabbed the deceased in the course of a sudden fightthereby bringing the case within the ambit of Exception 4 to section 294of the Penal Code, On the other hand in his evidence the appellant statesas follows : —
“ Then the deceased got up and struck me with his hand and droppedhis walking stick. Before assaulting me he abused me. I did notreturn the abuse. The other men in the boutique stood up. Theysurrounded me and wanted to get hold of me. I stabbed the deceasedand got out …. On the day of this incident when these people
were gathered together I thought they would assault me and get holdof me and I stabbed the deceased.”
It has been held in a number of cases that failure on the part of aprisoner or his Counsel to take up a certain line of defence at his trialdoes not relieve a Judge of the responsibility of putting to the jury suchdefence if it arises on the evidence. Thus in The King v. Hopper', afterthe jury had returned a verdict of murder, on appeal it was held thatthere was evidence of such provocation as would, if the jury accepted it,justify them in finding a verdict of manslaughter, that the Judge oughtto have left to the Jury the question whether the crime was manslaughteronly, and that as he had omitted to do so, the Court, acting under section5 (2) of the Criminal Appeal Act, 1907, would enter a verdict of man-slaughter which the jury might have found if they had been directedupon the point. In this case the defence put forward at the trial byCounsel for the accused was that the killing was accidental. The King v.Hopper (supra) was considered in R. v. Thoma$ Clinton ', where it was heldthat on an indictment for murder if defendant’s Counsel does not suggesta possible verdict of manslaughter but only acquittal on the ground ofaccident, the Judge is not bound to suggest that verdict. In that caseit was held that on the facts and having regard to the conduct of the casethe course adopted was the most favourable to the appellant. On the' (1915) 2 K. B. 431.* 13 Or. App. Rep. 215.
HOWARD C.J.—The King v. Albert Appuhamy.
facts it could not be said that the appellant had any grievance. BothHopper and Clinton’s cases were considered in R. v. George Harry Robinson1In which Hewart L.C.J. stated as follows : —
“ It was plain that the Commissioner was of opinion that there wasno evidence to go to the jury on the question of manslaughter. Thatbeing so, he (the Commissioner) was bound to decline to put the questionof manslaughter to the jury. When there is no evidence of man-slaughter, the question should not be left to the jury as was laid downin this Court in Phillis (32 T. L. R. 414) and again in Thomas Clinton(12 Cr. App. Rep. 215). The Commissioner rightly refrained fromleaving the question of manslaughter to the jury in this case.”
In R. v. Howard Ball", the same question was again considered. Inhis judgment Hewart L.C.J. stated that there were materials on whichthe jury, if they accepted certain evidence and took a certain view, mighthave reduced their verdict to one of manslaughter. In these circum-stances the question should not have been withdrawn from the jury.
The principles laid down in these cases were again affirmed in Rex. v.Thorpe *. In this case Hewart L.C.J. stated as follows : —
“ He (Lord Reading in Rex. v. Hopper) then stated the principle asfollows : —‘ We do not assent to the suggestion that as the. defencethroughout the trial was accident, the Judge was justified in not puttingthe question as to manslaughter. Whatever the line of defenceadopted by Counsel at the trial of a prisoner, we are of opinion that itis for the Judge to put such questions as appear to him properly to ariseupon the evidence even although Counsel may not have raised suchquestion himself ’.
That principle is not in the smallest decree in conflict with the judg-ments in cases such as Rex. v. Clinton and Rex. v. Robinson. (supra). Ifthere is no evidence on which a verdict of manslaughter can properly befound it is the duty of the Judge not to leave to the jury the questionof manslaughter, but if there is evidence, then it is the duty of theJudge to leave the question although it has not been raised by thedefence and is inconsistent with the defence actually raised.”
Applying the principles that have been so clearly stated byHewart L.C.J. the only question that arises in this case is whether therewas evidence on which a verdict that the appellant in stabbing thedeceased had merely exceeded the right of private defence as providedby Exception 2 to section 294 of the Penal Code could properly be foundby the jury. The only evidence to suggest such a defence is that of theappellant. The latter contended that after the deceased struck him withhis hand he dropped his walking stick. Then the other men in theboutique stood up, surrounded him and wanted to get hold of him. Hethought they would assault him and get hold of him and so he stabbedthe deceased. The right of private defence by virtue of section 95 of thePenal Code arises when a reasonable apprehension of danger to the bodyarises from an attempt or threat to commit the offence though the offencemay not have been committed. So far as the deceased was concerned
* 10 Cr. App. Rep. 140.5 16 Cr. App. Rep. 149.
28 Coxrs Cr. Cases 4.
12 Cr. App. Rep. 215.
HOWARD C.J.—The King v. Govinda Pulle.
there was no threat or attempt to commit an offence on the appellant.The latter could not, therefore, have had a reasonable apprehension ofdanger to his body arising from a threat by the deceased. In thesecircumstances it was impossible to say there was any evidence on whichthe jury could properly say that the case came within Exception 2 tosection 294 of the Penal Code. Moreover the learned Judge in puttingto the jury the question as to whether the case came within Exception 4to section 294 adopted a course that was on the facts the most favourableto the appellant.
We are, therefore, of opinion that the failure of the Judge to put thequestion of private defence to the jury did not in the circumstances ofthis case amount to misdirection. We are in this connection followingthe Indian cases referred to on page 364 of Mukerji, Trial by Jury andMisdirection.
The application for leave to appeal must, therefore, be refused.
THE KING v. ALBERT APPUHAMY