The TCing v. Vidanalage Abraham Appu.
1939 Present: Soertsz A.C.J., Hearae S.P.J. and Cannon J.
THE KING v. VIDANALAGE ABRAHAM APPU.
89—P. C. Avissawella, 17,610.
Insanity—Indictment lor murder—Plea of insanity—Burden of proof uponaccused—Nature of proof—Case of doubt—Direction to Jury—EvidenceOrdinance, s. 105.
Where, in a charge of murder, the defence of insanity is set up, theburden is upon the accused to prove that he did not know the nature ofthe act or that it was contrary to law.
It is not sufficient for the defence to raise a -doubt in the minds of theJury as to the sanity of the prisoner.
Where a plea of insanity is set up and the issue of insanity is left indoubt, it .would be a misdirection to ask the Jury to give the accused thebenefit of the doubt.
•HIS was a case stated by the Attorney-General in terms of
section 355 (3) of the Criminal Procedure Code. The facts arestated as follows: —
The prisoner was tried on May 5, 1939, before the Honourable Mr. O. L.de Kretser and an English-speaking Jury on an indictment charging himwith having committed murder by causing the death of one PoonahelagodaMudiyanselage Heras Singho alios Entappu, an offence punishable undersection 296 of the Penal Code.
By an unanimous verdict the prisoner was convicted of culpablehomicide not amounting to murder, an offence punishable under section297 of the Penal Code and he was sentenced to ten years’ rigorousimprisonment.
At the trial a defence of insanity was set up on behalf of the prisoner.
In several places in Iris charge to the Jury, the learned Judge directedthem to the effect that this defence was entitled to succeed if they weresatisfied on the evidence that the prisoner was of unsound mind and didnot know the nature of the act or that it was wrong or contrary to law: —
“ It is therefore only if a person is proved not to know the nature of
the act or not to know that it is wrong or contrary to law thathe is treated as a lunatic, and the law states that althoughhe did it, he is not responsible ”.
“If you think he knew that the knife was open and deliberately
caused the injury, whether he intended death or not, it would beprima facie murder. If you are satisfied on the medical evidenceand other evidence that the accused did not know what he wasdoing, or that it was wrong or contrary to law, you will not findhim guilty, but you will find that he committed the act ”.
.(c) “The question is whether on that evidence you can hold that hewas of unsound mind ”.
“ Do you think putting those things together he must have beenmad at the time he committed this act, that he did riot knowwhat he was doing ”.
SOSThs King v. Vidanalage Abraham Appu.
“ it is murder if you are satisfied that the man intentionally caused
the injury and was not of unsound mind, or it is at least hurt ifyou think he intended and used his fist or closed knife and didnot know that he was using an open knife. In either case if youthink he was of unsound mind, then your verdict will be that hecommitted the act but not guilty by reason of unsoundness ofmind
“if he was not of sound mind—if he did riot know the nature
of the act or that it was wrong or contrary to law, thenyou acquit him, but you will also bring in a finding that hecommitted the act. If you find that he was of sound mind, thenyour finding should be murder or culpable homicide notamounting to murder
Finally, the learned Judge went on to say—
" Accused does not come before you innocent in the sense that he is notproved to have committed the offence. The only question iswhat is the actual offence he has committed if he was of soundmind, and (2) was he of sound mind or not? As between thosematters you will remember always that an accused person isalways given the benefit of any reasonable doubt—as betweenany two situatons, if there is a reasonable doubt—a doubtwhich appeals to your commonsense, you will give the benefit ofthe doubt to the accused.”
The question submitted for the determination of the Court is whetherthe charge to the Jury contained a sufficient direction as to the burdenwhich lay on the accused to establish his defence of insanity.
H. V. Perera, K.C. (with him E. A. P. Wijeratne and H. A. Chandrasena),for the prisoner.—The question for decision is whether the trial Judgerightly directed the Jury with regard to the defence of insanity that wasraised. It is a settled principle of criminal law that the onus is on theprosecution to establish the charge beyond all reasonable doubt—Woolmington v. The Director of Public Prosecutions ’.
[Soertsz A.C.J. refers to sections 101 and 105 of the Evidence Ordinanceand to the meaning of “ proved ” in section 3.]
Section 101 speaks of facts. The word “fact” is defined in section 3.Section 105, however, speaks not of facts but of circumstances. Further,section 100 brings in English law. The burden of proof, therefore, in thefirst instance, is on the accused to prove the circumstances which mightproduce a doubt as to his sanity. It is not necessary for us to proveinsanity affirmatively. It is sufficient for us to show a reasonable doubtas regards sanity. For meaning of “ reasonable doubt ”, see RamasawamyChetty v. Uduma Lebbe Marikar * and Rengaswamy v. Pakeer
Between affirmative proof of sanity and affirmative proof of insanity,there is a region when there may be a doubt, regarding the sanitary orinsanity of the accused. The Judge has misstated the extent of theburden of proof resting on the accused. At various stages of his chargehe indicated that the onus on the accused was to prove his insanity beyond* (1935) App. Cos. 462.* (1901) 5 N. L. R. 31ft
» (1911) 14 N. L. R. ISO.
SOEKTSZ A.GJ.—The King v. Vidanalage Abraham Appu.
all doubt. The burden of proof on. an accused where the defence ofinsanity is raised is no higher than that resting on a plaintiff or defendantin a civil action—Sodeman v. RexRex v. Zulch
There is a mental ingredient, namely, the existence of sanity, in theoffence of murder, and where the prosecution has been shaken on thatpoint by the defence, the onus falls beck on the prosecution to remove allreasonable doubt regarding sanity. It is a fundamental principle thatevery ingredient of the offence should be proved by the prosecution. Thetest that has to be applied is the one applied in Lawrence v. King
J. W. R. Ilangakoon, K.C., Attorney-General (with him M. F. S. Pulle,C.C.) as amicus curiae.—The language used by the trial Judge in thesumming-up contained a sufficient direction as' regards the onus of proof.Where the defence of insanity is raised, accused has to satisfy the Jurythat he .actually was of unsound mind. See the cases cited in Russell onCrime (9th ed.) pp. 16-36, particularly the summing-up of Rolfe B. atp. 26; Criminal Law Journal of 1938, pp. 555 et seq.; 83 Law Journalp. 298; the summing-up of Justice MacCardie in the trial of Ronald True.The onus is on accused to prove insanity; if any doubt is raised regardinghis insanity, he cannot avail himself of the plea of insanity.
Cur. adv. vuli.
August 4, 1939. Soertsz A.C.J.—
This is a case stated by the Attorney-General under section 355 (3) ofthe Criminal Procedure Code. The question submitted to us. for decisionis whether or not, the trial Judge’s charge to the Jury empanelled in thiscase, contained a sufficient direction in regard to the nature and extent ofthe burden of proof which the Law imposed on a prisoner on whose behalfthe defence of insanity is set up.
Mr. H. V. Perera who appeared for the prisoner, submitted to us thatthere was misdirection because, at several stages of his charge, the learnedJudge told the Jury that the prisoner must prove that he did not know thenature of the act or that it was wrong contrary to law ; that the Jury“ must be satisfied on the medical evidence and the other evidfnce .thatthe accused did not know what he was doing or that it was wrong orcontrary to law Counsel contended that these and similar directionsin the charge were calculated to create in the minds of the jurors theimpression that the accused was bound to prove his insanity byestablishing that 'he did not know the nature of his, act or that it waswrong or contrary to law, whereas, he submitted, in point of fact, theburden imposed by law on the prisoner was no greater than to raise areasonable doubt in the minds of the Jury as to his sanity. In otherwords, the contention was that in regard to the burden of proof, the'position in a case of this kind, was not different from that in other criminalcases, and that if at the end of and on the whole of the case, there is areasonable doubt created by the evidence given by either the prosecutionor the prisoner as. to the guilt of the prisoner, the prosecution has notmade out the case, and the prisoner is entitled to a verdict in his favour.That is undoubtedly, the general principal of English Law, reaffirmed by1 (1936) 2 A. E. Ii. 1138.- S. A. L. 12. C1937) T. P. D. 400.
a (1933) A. C. 699.
SOERTSZ A.C.J.—The-tKing v. Vidanalage Abraham Appu.
■the House of Lords in the remarkable case of Woolmington v. The Directorof Public ProsecutionsJ. But, it is a question whether in view of ChapterIX. of our Evidence Ordinance, particularly of section 105, our law is thesame as the law of England. Section 105 of the Evidence Ordinanceenacts that “ when a person is accused of any offence, the burden ofproving the existence of circumstances bringing the case within any of thegeneral exceptions in the Ceylon Penal Code or within any special exceptionor proviso contained in any other part of the same Code, or in any lawdefining the offence, is upon him and the Court shall presume the absence ofsuch circumstances”. These are very clear words, and can only meanthat so far as our criminal law is concerned, the position is exactly thesame whether the defence is “ insanity ” or “ accident ”, to adduce twoinstances from among the general exceptions in the Penal 'Code, or“ culpable homicide not amounting to murder ” by virtue of the specialexceptions created by section 296 of the Code, to take an instance fromoutside the general exceptions. In each of these ca^es, the accused mustprove that he is within the exception or proviso. Section 3 of the EvidenceOrdinance defines the word “ prove ” for the purpose of that Ordinance.It says that “ a fact is said to be proved when, after considering the matterbefore it, the Court either believes it to exist, or considers its existenceso probable that a prudent man ought under the circumstances of theparticular case, to act upon the supposition that it exists In that viewof the matter, it would appear that where any of these exceptions orprovisos are set up, the defence is not proved if “ the circumstancesbringing the case within” any of the exceptions are involved in doubt.Our Courts have, however, as a rule, guided themselves in accordancewith the principle stated in Woolmington v. The Director of Public Prose-cutions (supra), and no occasion arises in this case, to pursue that matterany further.
In this case, we are only concerned with the question of the burden ofproof and the extent of that burden where the defence is one of insanity.In regard to this defence, the English Law is very clear. When thisquestion arose in 1943 in M’Naughton’s case, and the Judges were askedto rule upon it, they declared that “ in all cases every man is to be,presumed to be sane, and to possess a sufficient degree of reason to beresponsible for his crimes, until the contrary be proved to their (the Jury’s)satisfaction, and that to establish a defence on the ground of insanity,it must be clearly proved that at the time of committing the act ….
the accused did not know the nature and quality of the act he was doing,or if he did know it, he did not know that he was doing what was wrong ”.That is the rule which the Courts in England have acted upon ever since.In Rex v. Stokes ‘ Rolfe B. said in the course of his charge to the Jury“ if a prisoner seeks to excuse himself upon the plea of insanity, it is forhim to make it clear that he was insane at the time of committing the offencecharged. The onus rests on him, and the Jury must be satisfied that heactually was insane. If the matter be left in doubt, it will be their duty toconvict him, for every man must be presumed to be responsible for hisacts till the contrary is clearly shown The learned Baron referred to acase that came before Alderson B. where the Jury hesitated as to their'i (1935) App. Cat. 462.2 (.1848) 3 C. A K. 186.
SOERTSZ A.C.J.—The King v. Vidanalage Abraham Appit.
verdict, on the ground that they were not satisfied whether the prisonerwas. or was not of unsound mind when he committed the crime, and thatlearned Judge told them that unless they were satisfied of his insanity, itwould be their duty to find a verdict of guilty. In Rex v. Townley1Martin B. directed the Jury that " unless they were satisfied—and it wasfor the prisoner to make it out—that he did not know the consequences ofhis act, or that it was against the law of God and man,' and would subjecthim to punishment, he was guilty of murder Again in Rex v. Layton1Rolfe B. reiterated the views he expressed in Rex. v. Stokes and observedthat in cases of this kind there was “ one cardinal rule which should neverbe departed from, namely, that the burden of proving innocence rested onthe accused and that the question was not whether the prisoner was ofsound miud, but “ whether he had made out to their satisfaction that he wasnot of sound mind It is unnecessary to multiply instances. There isthe very definite pronouncement by the House of Lords in Woolmington v.The Director of Public Prosecutions (supra) that “M’Naughton’s case standsby itself. It is the famous pronouncement on the law bearing on thequestion of insanity in cases of murder. It is quite exceptional ….In M’Naughton’s case, the onus is definitely and exceptionally placedupon the accused to establish such a defence”. Lord Sankey refersto the case of Rex v. Oliver Smith *, “ where it is said that the only generalrule that can be laid down as to the evidence in such a case is that insanity,if relied upon as a defence, must be established by the defendant ”. In theearlier case of Joseph Edward Flavell*, Sankey J., as he then was,stated in the Court of Criminal Appeal that “ the defence raised at thetrial of the applicant was that of insanity, the burden of proving which layon the defence”. Section 77 of the Ceylon Penal Code is a condensedreproduction of the rule in . M’Naughton’s case, and in view of section 105of our Evidence Ordinance, there can be no doubt that the burden ofproving insanity is on the prisoner. So far as English decisions go, thisprinciple has been enunciated in differenFways, but the principle itself hasnever been called in question judicially. In the words of the Judges inM’Naughton’s case, insanity must be “ clearly proved ”, “ proved to theirsatisfaction ” (i.e., of the Jury), or as Rolfe B. stated it is for the prisoner“ to make it clear ”, “ he Jury must be satisfied ”, “ the burden ofproving innocence rested on the accused”. Counsel for the prisoner reliedon the recent case of Sodeman v. Rex", in which Hailsham L.C. put thematter in a different way. He said “ the other point is that the trialJudge in directing the Jury as to the burden of proof …. wenton to say that the burden of proof in a case of insanity rested upon theaccused, and the suggestion made by the petitioner was that the Jurymay have been misled by the Judge’s language into the impression thatthe burden of proof resting on the accused to prove insanity is as heavyas the burden of proof resting upon the prosecution to prove the factswhich they have to establish. In fact, there is no doubt that the burdenof proof for the defence is not so onerous. It has not been very definitelydefined . .. It is certainly plain that the burden in cases in which
an accused has to prove insanity may fairly be stated to be no higher than
i (1863) 3 F. & F. 839..' ? (1910) 6 Cr. App. 19.
* (1849) 4 Cox 149.* (1926) 19 Cr. ,1pp. 141.
e•' (1936) -J A. E E. 1138 (P.C.).
510 SOERTSZ A.CJ.—The King v. Vidanalage Abraham Appu.
the burden which rests upon a plaintiff or defendant in civil proceedingsThis, no doubt, is less compendious, less direct language than the languageused in the earlier cases, but it brings us in the end to the same point, andthat is that if the issue is left in doubt, the prisoner must fail. In civilproceedings the burden remains throughout the entire case where thepleadings originally place it. It never shifts. The burden of adducingevidence constantly shifts. But in regard to the burden of proof, “theparty whether plaintiff or defendant, who substantially asserts theaffirmative of the issue has the burden of proof. It is on him at thebeginning of the case; it continues on him throughout the case; and whenthe evidence by whomsoever introduced is all in, if he has not by thepreponderance of evidence required by law established his position orclaim, the decision of the tribunal must be adverse ”. It is, 1 think,clear that the Lord Chancellor said what was said in the earlier cases butin a circumlocutory manner. If Counsel’s suggestion was that this case-is authority for saying that it is sufficient for a prisoner to throw doubt onhis sanity, I cannot entertain that suggestion. In the case before himthe Lord Chancellor was face to face with M’Naughton’s case, for anattempt was made to obtain a reconsideration of the rules laid down thereby pleading that “ uncontrollable impulse ” was a good ground forexculpation. He unhesitatingly rejected that contention, upheld theprevalent view, and went on to consider “ the other point ”, that is theburden of proof. On that point, the Judges in M’Naughton’s case hadlaid dowii, as I have already pointed out, that insanity must be proved tothe Jury’s satisfaction, that it must be clearly proved, and it cannot, in myview, be supposed that Lord Hailsham meant to depart from thatinterpretation when he expressed himself as he did.
The Attorney-General to whom we are indebted for much assistance inthis case referred to Cant v. Alexander Hailey & Sons, Ltd., a note of whichappears in the Criminal Law Journal of October, 1938, at page 555 et seq.(the report itself is not available here). In that case du Parcq J.adverted to the difference between “proof beyond all reasonabledoubt ”, and “ proof ”, and he said the burden of proof on the prosecutionin a criminal case was to prove beyond all reasonable doubt, while theburden of proof in a civil case was to prove. I cannot help feeling thatsome confusion of thought has been created by a not too precise use ofwords. Although the. phrase “ to prove beyond reasonable doubt ” hasbecome inveterate in the language of the Courts, logically this discrimi-nation between “ prove beyond reasonable doubt ” and “ prove ” seemsno more defensible than it would be to speak of a squarer square or arounder circle, or in Rupert Brooke’s phrase of “ wetter water, slimierRlirrw The word “ prove ” involves the idea of placing beyond reasonabledoubt, and to speak of “ proving beyond reasonable doubt ” has the soundof tautology. The phrase is not intended to convey? the idea that there isa difference of meaning between it and the word “jsrove ” but to make itclear that so far as the case for the prosecution in a criminal trial isconcerned, it will not suffice for it to make out a case of grave suspicionagainst an accused person; it must establish its case by eliminating allreasonable doubts; in other words it must prove its case, and so long asthere is a reasonable doubt left, there is no proof. The phrase “ to prove
SOSHTSZ A.CJ.—The KingVidanalage Abraham Appu. 511
beyond reasonable doubt ” is explanatory of the meaning of the wordpi?ove. As du Parcq 3. went on to observe “ prove ” meant “ prove nomore and no less; where the matter is left in a state of doubt the defencewas not proved It must, however, be borne in mind that du Parcq J.was speaking with reference to a statutory offence in regard to which theprisoner had to exculpate himself. So far as English Common lawoffences are concerned, the general rule is that an accused need not provehis innocence. It is sufficient for him to create a reasonable doubt as tothe truth of the case for the prosecution. But the defence of insanityoccupies an exceptional position, and the prisoner must, in the words ofBelie B., “ prove his innocence ” by proving his insanity. If he onlyinvolves that issue in doubt, he fails. The position in our law is notdifferent. Section 105 of the Evidence Ordinance makes that clear.
The question in regard to the test to Jse applied to determine insanity,namely, whether the prisoner knew the nature of his act or that it waswrong or contrary to law was not disputed at the argument before us.But the case stated appears to ask for our decision on the sufficiency of thecharge as a whole. I would, therefore, rule that the learned trial Judgedirected the Jury correctly and sufficiently on what constitutes insanityin the eye of the law.'
I would also rule that it was an incorrect direction when the Judge saidto the Jury “ Was he of unsound mind or not. As between these matters,you will remember always that an accused person is always given thebenefit of any reasonable doubt. As between any two situations, if thereis a reasonable doubt, a doubt which appeals to your commonsense, youwill give the benefit of the doubt to the accused ”. The correct directionwould have been that if the issue of insanity was left in doubt, the defencefailed. In earlier parts of his charge, ,the trial Judge had correctly statedthat the prisoner must prove, must satisfy the Jury, but the passage Ihave quoted occurs in the concluding part of the charge and qualifies thewhole of it. But, the misdirection I have referred to was unduly favourableto the prisoner, and it is of no consequence in this case in view of theverdict that was returned.
There is one ether matter I would refer to, and I refer to it becauseCounsel for the prisoner repeatedly called out attention to it, and that isthe observation made by the learned Judge in the course of his chargethat if the prisoner “ is not guilty because of unsoundness of mind, the casewill be reported to the Governor, and the man will be treated as a criminallunatic and he stands the chance of being locked up for life ”. Counselfor the prisoner submits that the Jury may have been influenced by thisbemark to return the verdict they did, rather than return a verdict of notguilty by reason of unsoundness of mind lest the prisoner “ be locked upfor life”.
hi my opinion, it is desirable that we should refrain from expressions asvivid and cogent as thSt, although in view of the nature of the verdict to bereturned in cases of this kind—not guilty, but committed the act—therecan be no objection to Juries being acquainted with the fact that such averdict does not mean that the prisoner is set free.
XIeahke S.P.J.—I agree.
Cahnon J.—I agree.
THE KING v. VIDANALAGE ABRAHAM APPU