DIAS J.—The King v. Jayawardene.
1947Present: Canekeratne and Dias JJ.
THE KING v. JAYAWARDENE.S. C. 115—D. C. Criminal, Kandy, 315.
Insanity—Penal Code, Section 77—Quantum of proof—Affidavit of witness
not called at trial—Admissibility in appeal.
In support of a plea of insanity evidence was led fqr' the accused thathis father, brother and sister had been insane; that the accused.in hischildhood had suffered from epileptic fits and that when his detectionand arrest became imminent his mental condition deteriorated; and heattempted to commit suicide and was subsequently adjudicated to be ofunsound mind. The evidence also proved that during the thirty yearshe had been a public servant he had displayed no signs of mentalaberration.
Held, that the evidence was insufficient to discharge the burden whichlay on the accused.
Quaere, whether the defence of insanity under section 77 of the PenalCode should be established beyond reasonable doubt or whether it wouldbe sufficient if the accused established it by a preponderance ofprobability or on the balance of evidence.
Held, further, that a Court of Appeal will not ordinarily admit inevidence an affidavit of a witness who was not called at the trial.
Jamal v. Aponso (.1924) 2 Times 215 and Deachinahamy v. Romanis (1900)1 Browne 188 followed.
^^PPEAL against a conviction from the District Court, Kandy.
A. Hayley, K.C. (with him H. Wanigatunga), for the accused,appellant.
Jansze, C.C., for the Attorney-General.
Cur. adv. vult.
September 9, 1947. Dias J.—
The appellant, D. R. Jayawardene, was on the material . dates thestation master of the Matale Railway Station.
DIAS J.—The King v. Jayawardene.
He was indicted under section 392 of the Penal Code in that he beingentrusted as a public servant with dominion over property, to wit thecash collected at the Matale Railway Station, did between January 31,1945, and February 22, 1945, commit criminal breach of trust of a sumof Rs. 4,200.
After trial the District Judge convicted the accused of this charge andsentenced him to undergo one year's rigorous imprisonment. Heappeals from that conviction.
The case for the prosecution was not only proved beyond all reasonabledoubt, but both in the Court of trial as well as in appeal it was concededthat the charge had been established against the appellant. His defencewas that at the time he committed the offence he was by reason ofunsoundness of mind either incapable of knowing the nature of his acts ;or that he. was doing what was either wrong or contrary to law in termsof the general exception to criminal liability formulated by section 77of the Penal Code.
The learned District Judge in a carefully considered judgment examinedthis plea and has held that it had not been established. The question iswhether his decision is right *
It is settled law that once the Crown has established its charge againstthe accused beyond reasonable doubt, the burden of proving the defenceof insanity under section 77 of the Penal Code is placed on the defence.There appears to be some uncertainty as to whether that burden shouldbe established by the accused beyond reasonable doubt, or whether itwould be sufficient for the accused to discharge that onus by a preponder-ance of probability or on the balance of evidence. The former view wasexpressed in the case of The King v. Abraham Appu This was a decisionbefore the Court of Criminal Appeal came into existence on a case statedto a Bench of three Judges. The latter view was expressed in the caseof The King v. Don Nikulas Buiyas. This was a decision of the Court ofCriminal Appeal. It is a question whether the later seven-judge decisionin The King v. Chandrasekera5 has decided which of these views should beaccepted as correct. It is, however, unnecessary in the present case toexpress an opinion on this point because the learned trial Judge basedhis decision on the case of The King v. Don Nikulas Buiya (supra) and■considered whether the accused had discharged the lesser burden ofproof by a preponderance of probability or on the balance of evidence.
It is clear law, however, that the burden of proof is on the accused tomake it clear that he was at the time he did the criminal act labouringunder such unsoundness of mind as made him incapable of knowing thenature of his act or that what he was doing was either wrong or contraryto law. If the principle in The King v. Don Nikulas Buiya (supra) isapplied, it was for the accused in this case to make it clear by a prepon-derance of probability or on a balance of the evidence that his case camewithin the four corners of section 77 of the Penal Code. If in attempting1 (1939) 40 N. L. R. 505.1 (1942) 43 N. L. R. 3B5.
(1942) 44 K. L. R. 97.
DIAS J.—The King v. Jayawardene.499
to establish this defence the prisoner only succeeds in involving thequestion of his unsoundness of mind in doubt, he has failed to -dis-charge the burden incumbent on him, and his defence fails. In sucha case there is no question of giving the prisoner the benefit of thedoubt.
The law is that every man is presumed to be sane and to possess asufficient degree of reason to be responsible for his crimes until thecontrary is proved to the satisfaction of the trial Judge or the jury,and it is for the defence to make it clear that, at the time the prisonercommitted the offence charged, he was labouring under such unsoundnessof mind as brings his case within the provisions of section 77. If theaccused merely succeeds in involving those issues in doubt he fails todischarge his burden of proof, and the defence fails.
What was it that the accused in this case had to establish in order toclaim a verdict, under section 373 of the Criminal Procedure Code, of anacquittal on the ground of insanity ? He had to prove— (a) that at thetime he committed the criminal act, (b) he was by reason of unsoundnessof mind (c) incapable of knowing—
either the nature of the act, or
that he was doing what was—
either wrong, or
contrary to law.
The accused could claim exemption by proving one of two alternatives,that is, either by reason of unsoundness of mind, he did not know thenature of the act, or, by reason of unsoundness of mind, he was doing whatwas wrong or contrary to law.
"What are the facts ? Undoubtedly the accused’s family has thetaint of insanity. His father was insane and died in the Asylum. Hisbrother also was in the Asylum and died there. A sister of his is insane.When the acccused was a boy he had been liable to epileptic fits. Butthe evidence shows that the accused had been in the service of the CeylonGovernment Railway for 30 years and that during that period therehad been no signs of any mental aberration on his part until March 9,1945, i.e., after he committed this offence. The duties of a stationmaster are responsible and important. The duty of observing thesafety regulations to prevent danger to the travelling public is placedin his hands. In addition he has office work to do and he handles allmoneys collected in his booking-office and the goods’ shed. It is asignificant fact that although his family has the taint of insanity, theaccused himself since he joined the service of the Railway, and for 39years thereafter, showed no signs or symptoms that he was mentallyderanged.
The offence of which he has been convicted was committed in Januaryand February, 1945. The evidence makes it quite clear that the accusedhad got himself into serious financial difficulties which caused him tomisappropriate moneys which had been entrusted to him in the course
DIAS J.—The King v. Jayavoardene.
of his official duties. Matters came to such a pass that in March, 1945,it was almost certain that the misappropriations of the accused wouldbe detected. He realised that although he had been immune up to then,nemesis, probably in the shape of an audit, would soon overtake him.Accordingly, on March 9, 1945, the accused stated that his children wereill and applied for and obtained leave. He never returned. His successordetected the fraud and investigations followed, leading to a police inquiryculminating in Magisterial proceedings against the accused.
On March 9, 1945, the accused, who was on leave, from the VictoryHotel, Kandy, wrote the significant letter P12 to Mr. Demmer hisimmediate superior officer. The relevant portions of this letter read asfollows : —
“During February last I was compelled to appropriate a sum ofmoney between Rs. 3,600 and Rs. 3,800 of Government cash meaningto replace same before the end of the month having sold some of myproperty or recovering debts due to me from my father-in-law andbrother-in-law living at “ River View ”, Pelena, Weligama.
“Both attempts failed. I therefore committed suicide in the hotelby shooting myself.
“ As you know I was in bad circumstances about six months ago andthat is why I was led to apply for a loan from the Fines Fund. Thattoo failed and gradually by trying to gamble and make it up I felldeeper into the mire.
“Please order an audit clerk to go through the account and recoversame from my Association Fund. The remainder please order paymentto my children with the attorney power being given to Mr. P. P. J.Simon …. my brother-in-law. Also order my furniture andbelongings be sent to when to above address on government accountwhich is the only privilege I ask you for the whole of my career. Thismust be done before April next as I have had a dirty transaction witha Chettiar who might jump at my movable property also which hecannot do. I am yet sorry for him.
“ You are, Sir, a good adviser to drinking officers under you but theonly advice I give you is that you should at the same time sympathisewith them for you lose your best staff gradually and make yourdepartment compact piece of inefficiency.
“ Goodbye to you, yours and so on.”
He then adds two postcripts to his letter. In one he admits that he owesthe Railway Rs. 3,700.
Mr. Demmer, on receipt of this letter took prompt action and got thepolicy to call on the accused at the Kandy hotel, where he was foundwith a gun.
It is submitted that the letter P12 shows that the accused was insaneand was about to commit suicide. That may be so, but that does notprove that in January and February when he committed the offencehe was of unsound mind. Pi2 is the unbalanced letter of a desperate
DIAS J.—The King v. Jayavoardene.
man who, finding that ruin and imprisonment were staring him in theface, was preparing to find an easy way out of his difficulties by puttingan end to his life. The letter, far from showing that the accused wasunsound in his mind in January and February, 1945, amply demonstratesthat when he wrote P12 in March he was not labouring under suchunsoundness of mind as prevented him from realising the nature of whathe had done, or contemplated doing, or that it was morally wrong toembezzle Government money or that it was illegal to do so. P12 showsclearly he was fully conscious of his guilt, and that rather than face theexposure he was prepared to commit suicide.
It was pointed out that the accused’s letter P13 of October, 1944,when compared with P12 of March 9, 1945, shows that the latter waswritten by an unbalanced person. P13 was written long before theseincidents when the accused was quite normal. The letter P12 waswritten by a man who was labouring under a severe emotional strain andwho intended to commit suicide. I am unable to draw the inferencefrom P12 that the accused in January and February, 1945, was sufferingfrom such unsoundness of mind that he did not know the nature of hisacts, or that what he was doing was either wrong or contrary to law.After his detection became certain- and when he was arrested it wouldseem that the accused’s mental condition deteriorated in consequence ofthat strain.
We have the certificate A1 dated April 27, 1945, from Dr. H. O.Gunawardene, to the effect that the accused had told him that he wasfeeling faint for some months and that he had insommia and was generallynervous and unstable. Dr. H. O. Gunawardene, therefore, advised himto have one month’s rest. It is to be noted that Dr. Gunawardene ismerely stating what his patient told him. Then there is the medicalcertificate A3, given by the Medical Officer of Government Departments,stating that the accused had told him that he had headaches, sleeplessness,that he was unable to concentrate on his work, and that he was giddyand had palpitations. The doctor observed that the accused appearedto be dull and apathetic. He diagnosed the condition of the accusedas being due to neurasthenia and recommended that he be given 30 days’leave. Then there is the document A5 of June 23, 1945, certifying thatthe accused was suffering from melancholia with occasional suicidalinclinations. In this doctor’s opinion the accused was not fit to beemployed in the Public Service and he recommended that he be sentbefore a Medical Board and granted leave until that board met. Dr. A. M.de Silva, who gave evidence at the trial, did not say on what groundshe formed his diagnosis. This doctor examined the accused for thefirst time on the day he issued that certificate, and it is a question whethera medical man could make this diagnosis at the first examination. Headded “ The 21 days during which the accused has written accounts andwhich accounts were shown to me must have been written during hislucid intervals ”. In my opinion the evidence of Dr. A. M. de Silvais quite valueless in assessing the important question as to the mentalcondition of this accused in January and February, 1945.
DIAS J.-—The King v. Jayawardene.
During this period the accused well knew that he was going to becharged, and that he would probably be convicted with the disgrace whichusually attends a conviction for a crime involving moral turpitude.Therefore it is quite possible, in fact probable, that the conditionsobserved by these doctors were something which came on after March9, 1945. The evidence does not assist the accused on the vital questionas to whether he was labouring under such unsoundness of mind inJanuary and February, 1945, as would entitle him to seek the protectionof section 77 of the Penal Code. No doubt in March, 1947, the accusedwas sent to the mental home at Angoda and was adjudicated by theDistrict Court to be of unsound mind, but in May, 1947, he wasdischarged on trial.
I cannot say that I am satisfied with the evidence either of Dr. C. O.Perera, the Medical Superintendent of the Mental Hospital, Angoda,or of his Assistant, Dr. A. L. Abeywardene. The conclusions reachedby these two gentlemen are based on inadequate material, and do notjustify a finding that in January and February, 1945, the accused hadthe symptoms which they say they observed in 1947. It is quite possibleas stated by Dr. Abeywardene that in 1947 the accused was dull andapathetic, that his memory was poor and that there was a markeddeficiency in all intellectual functions. But that evidence is valueless indeciding the question which the Court had to adjudicate upon. Thefollowing passage appears in Dr. ,C. O. Perera’s evidence : —
“ Shown letters P13 and P12. P12 is dated 9th March, 1945,P13
is dated 17th October, 1944. P13 is very well written. The man wasvery rational when he wrote it. The letter Pl-3 is very well worded.
I consider P12 written on 9th March, 1945, entirely a different type ofdocument. In P12 there is a mass of ideas that the writer has jotteddown as they came in. There is no attempt at qualification or anyattempt at putting it in good language. Some of the statements inP12 appear to be irrelevant. For instance, his reference to his death.Reference in the letter to be remembered to his superior officers andthe advice to his superior officers. All this appear to be irrational■and incongruous statements to make taken together ….
Judging from the past history, as I have been told, and the subsequentevents I do not think the accused was capable of knowing what he wasdoing when he took the money in February, 1945. What I say is thatthe accused did not realise what he was doing in February, 1945,
…. In the letter P12 the writer suggests that he has appro-
priated the money with the idea of replacing same. He shows con-fused thinking. He seems to think that this is a civil matter foradjustment with the Government. There is nothing in the letterP12 to indicate that the writer knew that he was doing somethingwrong. The letter indicates that he thought he was doing somethingnot wrong ”.
Under cross-examination the witness said :
“ From the first paragraph of letter P12 it is quite clear that theaccused wanted to make good the money before the end of the month.
DIAS J.—The King v. Jayawardene.503
before he was caught …. From this letter it seems that theman was conscious that he was in financial difficulties and that he wastrying to get out of his financial difficulties by gambling and thathe was taking Government money with a view to replacing same
1 do not wish to be hard on a witness who has no opportunity of beingheard, but I think the evidence given by Dr. C. O. Perera was givenrecklessly on totally inadequate material. How can any doctor onhearsay and on the construction of P12 commit himself to the statementthat in his opinion the accused was of unsound mind in January andFebruary, 1945, and was not capable of knowing what he was doingwhen he took the money during that time ? I think the evidence ofDr. C. O. Perera is most unsatisfactory. The modus operandi of theaccused, as detailed by the learned Judge at pages 51 and 52 of hisjudgment, clearly shows that the accused needed considerable skill andmental acumen in order to falsify the books and vouchers received byhim during this period in order to deceive, not only his station staff, butalso the head office at Colombo. A person who was of unsound mindand did not know the nature of his acts could not have perpetrated thissomewhat intricate fraud in the manner in which the accused carriedit out.
It was suggested that owing to attacks of malaria a Dr. Selvadurai hadadministered injections of atabrin to the accused between 1944 and 1945.It was contended that the effect of atabrin is to make a man lose hisreason. On that ground Dr. Selvadurai had been summoned. After eightwitnesses had been called for the defence, counsel for the accused statedhe wanted to call Dr. Selvadurai. He was absent and there was no proofthat summons had been served on him. I feel sure that had an applica-tion been made by learned counsel to the trial Judge for a short adjourn-ment in order to secure the attendance of the witness that applicationwould have been readily granted. Counsel however deliberatelydecided to proceed with the case. In appeal an application was madeto read an affidavit from Dr. Selvadurai. This application was opposedby Crown Counsel who contended, in the first place, that the affidavithad not been sworn to before a person referred to in section 428 of theCriminal Procedure. Code, and, in the second place, that when once thepinch of a case was ascertained it would be improper to allow an affidavitto be filed on a material point by a person who could not be cross-examined by the opposite side. In the case of Jamal v. Aponso1 Jaya-wardene J. said:—“I do not think that the record can be contradictedor impeached by affidavits ”. See Deachinahamy v. Romanis2 In thelatter case Bonser C.J. held that the Supreme Court would not acceptan affidavit which purports to supply unrecorded statements made by awitness in the lower Court, there being no precedent for such a practice.We therefore decided not to receive the affidavit in evidence.
Having regard to the evidence as a whole I think the learned DistrictJudge has come to a correct conclusion in holding that the accused hadfailed to establish, in terms of section 77 of the Penal Code, that at the
1 (20:?^) 2 Timsa Low Reports 215.
(1900) 1 Browne 18S.
DIAS J.—The King v. Jayattmrdene.
time he committed the criminal act he was labouring under such un-soundness of mind as made him incapable of knowing the nature of hisact, or that he was doing what was wrong or contrary to law.
If the appellant is at present “ a person deemed to be of unsoundmind ” within the meaning of section 20 (a) of the Lunacy Ordinance(Chapter 177), sections 7 and 8 of that Ordinance indicate the procedurewhich the executive Government should follow.
The appeal is dismissed.
Canekeratne J.—I agree.
THE KING v. JAYAWARDENE