[Court of Criminal Appeal]
1969 Prestnt:Sirimane, J. (President), Samerawickrame, J., and
A. M. P. KATNAYAKE, Appellant, and THE QUEEN, RespondentC. C. A. Aiteal No. 1UG of 19GS, with Application No. 157S. C. 1J0/67—If. C. Kvrunegala, 48236
(i J K rule nee Ordinance—Section 32—Scope—Charrje of murdering two persons—Dying deposition of one of the deceased—Admissibility as to cause of death ofthe other deceased.
(ii) Charge of murder—Pica of intoxication—Durden of proof—Direction to jury—
Sufficiency—Penal Code, ss. 7S, 70.
Tho accused-appellant was charged with tho murder of two persons 1’ andH. Tho death of P was caused in tho course of tho samo transaction in whichH enmo by his death. H, in his dying deposition, stated that tho appellantstabbed P and when ho (H) tried to intorveno tho appellant stabbed him as well.
Held, that-, under section 32 of tho Evidonco Ordinance, H's dying depositionwas ndmissiblo in evidence against, tho appellant oven in respect of tho chargerelating to tho death of P.
In a prosecution for murder the accused raised tho mitigatory plea ofvoluntary intoxication. In tho summing-up the trial Judge explained to thojury that- murderous intention must- bo present in order to constitute thoofTenco of murder, anil that the burden of proving tho intention was on thoCrown. Ho then told tho jury that- if tho. w-nisod could show, on a balance ofprobabilities, that- he was so drunk ns to be incapable of forming a murderousintontion, thon ho would be guilty of culpable homicide not amounting tomurder, ns tho law attributed to a drunkard, in a enso of voluntary intoxi-cation, tho knowledge of a sober man.
Held, that, there was no misdirection on the plea of intoxication. “For thopurposes of section 79 (of tho Penal Code.) tho state of intoxication in which n;*erson should bo is one in which lie is incapable of forming n murderousintention; and whether he has reached that- state of intoxication or not isa question of fact for tho jury to de-tonnino depending on tho evidence in eachease ; and it is for tho person who raises the pica of drunkenness to establishon a balance of probability that ho lin<l reached that state of intoxication inwhich ho could not havo formed a murderous intention
Appeal against a conviction at a trial before the Supreme Court-.
Colcitt R. <Je Silva, with J/. /,. de Silctt. yimal Senanayake, D. J.Wttlpoln and O. O. Fonscka (assigned), for the accused-appellant.
V: S. A. PuUenayegum, Senior Crown Counsel, with Priyantha Perera, .Crown Counsel, for the Crown.
!•K 5-46—2,255 (1/71)
Cur. adv. vult.
SIRIMAXE, J.—liatnayahc v. The Queen
March 23, 1969. Sirtmane, J.—
The appellant was convicted, on two counts of umulcr.
The first related to the murder of one Punchi Nilame and Hie secondto the murder of one Herathhamy.
The case against the appellant depended almost entirely on statementsmade by Herathhamy to the' police and the Magistrate. Shortly,Herathhamy had said that the appellant stabbed Punchi Nilame andwhen he (Herathhamy), tried to intervene the appellant stabbed himas well.
In the statement to the Magistrate, ileratlihamy described theassailant as “Batnaj^ake formerly of Bemmulla gedera but now livingin. Udugederawatte”, and stated further that the assailant was a person,whom he .knew, that lie was a dark unmarried person who was a watcher.Having examined the evidence led in the case, we are unable to say thatthe jury were unreasonable in holding that Horathhamy’s descriptionreferred to this accused and no other.-
There was evidence that earlier on that day, tire appellant who hadsuspected that Punchi Nilame was responsible for the loss of some ofhis pots used for distilling, had gone to the latter’s house and held outa threat to Punchi Nilame’s wife that he would not allow her husbandto return home that day. There was also evidence that the appellantwas seen in the company of Punchi Nilame that afternoon about 5.15 p.m..The incident had taken place at some time between 5-30 and 6.30 p.m.
The learned Commissioner had given adequate directions to the juryin regard to the marine/ in which they should consider statements madeby Herathhamy before his death, and we see no reason to interfere withthe verdict on the ground that there was any misdirection or non-directionon that point.
It was urged, however, that the dying deposition of Herathhamycould not be used by the prosecution to support the first charge, i.e.,the murder of Punchi Nilame;
Section 32 of the Evidence Ordinance provides that statements of aperson who is dead are themselves"relevant facts,
“ (1) when the statement is made by a person as to the cause of his :death, or. as to any of the circumstances of the transactionwhich resulted in his death, in cases in which the cause ofthat person’s death comes into question.”
The scopeof the section is very wide.
It is conceded that the death of Punchi Nilame was caused in thecourse of the same transaction in which Herathhamy came by his death.The joinder of the two charges was permissible under section ISO (1)
SIR IMA NE, J.—Ratnayake r. The Queen
.of the Criminal Procedure Code and the entire statement was, therefore,admissible' at the trial. There was no application for separate trials,and wo do nob think that such an application had it been made wouldhave met with any success.
It was argued that if there hud been a separate trial on the firstcount the statement would have been inadmissible. We do not think so.The circumstances relating to the two killings are so closely interwoventhat Hcratlihamy’s death would come into question in any chargerelating to the death of Punchi Nilame. In the case of The King v.Samara Loon Banda} the accused was charged with the murder of oneKiri Banda. This killing teas one incident in a transaction in the courseof which three persons were killed by the accused, one of them beingPunchi Banda. The accused pleaded the right of private defence.The Crown relied on the dying declaration of Punchi Banda giving thecircumstances in which he met with his death and which also broughtKiri Banda to the scene.. It was held that the dying declaration wasadmissible under section 32 (1) referred to above.
There is also the case of The Emperor v. Nga Ilia Bin and another2where a husband and wife were killed by two persons who were a masterand servant. The only evidence available was the dying depositionof the wife who said that her husband was killed by the master andthat she was attacked by the servant-. It was held that the statementwas admissible not only against the servant but against the masteras well.
In our view the learned Commissioner was right when he told thejury that they could “ take into account the statement of Herathhamy,even in respect of Punchi Nilame ”.
The next point urged on behalf of the appellant was that the offencesshould in any event be reduced to culpable homicide not amounting-to murder on the ground of drunkenness and that there was a misdirectionon this point.
There was sonic evidence that the accused was after liquor on thatday. For instance, Punchi Nilamc’s wife said that when ho held outthe threat at about 1.00 p.tn. the accused appeared to be drunk. Awitness called ltanbanda had said that the deceased, Punchi Nilame,and the appellant drank a Lottie of cider at his house that afternoon,and that “at that time they had drunk a lot". There was also thoevidence of one Dingiri Appuhamy that at about 7.30 p.m. that night,
e., an hour or so after the incident the appellant was smelling of liquorand staggering, though there was also evidence of one Punchi Appuhamythat about 5.15 p.m. on that day the appellaut did not appear to bodrunk.
One may, at this stage, refer to t lie injuries on the two deceased personsBoth of them had been stabbed in the region of the abdomen and their •
« (/.'>/•?) u X. /.. ft. tT>.
• .1. /. It. 1-10. Rangoon JST.
■iS tSIRDIAXE, J.—-Ratnnyakt v. The Queen
intestines were protruding through the stab wounds. The medicalevidence was to the effect that in ho".ii cases deatli would have resulted inthe ordinary course of nature.
The learned Commissioner explained to the Jury that the murderousintention must be present in order to constitute the offence of murder,and that the burden of proving that intention was on the Crown. Hethen told the jury that if the appellant could show, on a balanceof probabilities, that he was drunk, so drunk so as to be incapableof forming a murderous intention, then he would be guilty of culpablehomicide not amounting to murder, as the law attributed to a drunkardthe knowledge of a sober man. in a ease of voluntary intoxication suchas this one.
Learned Counsel for the appellant pointed out that there was adifference in the language in section 78 of the Penal Code (which dealswith involuntary intoxication) and section 79 which deals with voluntaryintoxication. lie pointed out that the former section required that“ by reason of intoxication ” the drunkard should be incapable ofknow ing the nature of the act or that he was doing something whichwas wrong or contrary to law, while the latter section only requiredthat at the time the drunkard commits the act he should be “ in a stateof intoxication He submitted that when the learned Commissionertold the jury that the appellant must be able to show' on a balance ofprobability that he could not have formed a murderous intention, anunnecessarily heavy burden was placed on the defence. We are unableto agree with this submission. For the purposes of section 79, thestate of intoxication in which a person should be is one in which he isincapable of forming a murderous intention ; and whether he has reachedthat state of intoxication or not is a question of fact for the juryto determine depending on the evidence in each ease; and it is for theperson who raises the plea of drunkenness to establish on a balance ofprobability that he had reached that state of intoxication in which hecould not have formed a murderous intention.
Right throughout his charge, the learned Commissioner told the jurythat the law imputed to the accused only the knowledge of a sober.man if the accused could establish that it was probable that he could nothave formed a murderous Intention due to his drunkenness. Onepassage of his summing up has been criticised which reads as follows :—
“ So, if you are certain on a balance of probability that the accusedwas so drunk, (hen you will go to consider what is the evidence ofdrunkenness ; what is the degree of drunkenness of the accused ; washe so drunk that he would riot be able to form an intention ; was heso drunk that when he stabbed these two people he did not know thathe was stabbing human beings ? Then did he think that he wasstabbing two animals ? Was that his state of drunkenness ? If there. was that state of drunkenness, that is, he did not know anything that. was happening, then he will not be in a position to form an intention.So, you will consider on the evidence whether the accused was/ firstly.
SIRIMANE. J.—ftalnayatre v. The Queen.
probably drunk and, secondly, if you hold that he was probablydrunk, ivere the probabilities that he was so diunk that he could nothave formed an intention ? ”
The learned Commissioner was here emphasizing that the state ofintoxication must be such as to render the person concerned incapableof forming a murderous intention. On reading the directions as awhole, we are unable to say.that there was a misdirection on this point.Immediately after the above passage, the learned Commissioner said—
“Now, gentlemen, from all this evidence and from the statementof Heralhhamy it is for 3’ou to decide, firstly, whether it is moreprobable that the accused was drunk and, secondly, if that was so,whether it was more probable that he was so drunk that he couldnot have formed any intention. If you are of the view that he wasso drunk .that he could not have formed an intention, then, of course,the charge of murder cannot be sustained because to prove a chargeof murder the Crown must also prove murderous intention. So,gentlemen, if 3011 are of the view that he was so probably drunk,then the law imputes to him the knowledge of a sober man, and hewill be guilty of culpable homicide not amounting to murder.”
In regard to the submission that it was a misdirection to state thatthere was a burden on an accused to prove that he could not have formedthe murderous intention, there is the case of the King v. Velaiden ,*which was decided b3’ five Judges of this Court. It was held thatwhere in a case of murder the defence of drunkenness is put forward, the 'burden is on the accused to prove that by reason of the intoxicationthere was an incapacit3* to form the intention neccssaiy to commit thecrime. In concluding his judgment, Howard, C.J. stated as follows :—
“ The authorities cited whether from Ceylon, England, India orSouth Africa have satisfied us that the burden of proof in a case ofmurder in which the defence of drunkenness is put forward rests onthe accused who must prove that by reason of intoxication there wasan incapacity to form the intent neccssaiy to commit the crime.Evidence of drunkenness falling short of this and mcrel3- establishingthat the mind of the accused was affected by drink so that he morereadilj- gave way to some violent passion docs not rebufthe presumptionthat a man intends the natural consequences of his act.”
We consider this case to be binding on us.
In the course of his argument, learned Crown Counsel, while supportingthe directions of the learned Commissioner submitted that they wereunduly favourable to the ajiiiellant. He contended that section 79was introduced into our renal Code in an era in which intoxication wasconsidered to aggravate an offence rather than mitigate it. He submittedthat the section was enacted in order to assign to a voluntary intoxicated 1
K 54ft (1/71)
1 (1947) JS xY. L. n. 409.
Cooray v. Malhu
offender the same knowledge and intention as that of a sober man.In short, that section 79 did not exculpate a person or mitigate fin offenceon the ground of voluntary drunkenness. We arc unable to agree withthis contention. The section itself refers to “ cases where an act doneis not an offence unless done with a particular knowledge or intent ”, andthen goes on to say that “ a person who docs the act in • a state ofintoxication shall beliable to be dealt with as if he had the same knowledgeas he would have had if he had not been intoxicated In Vel-aiden'scase referred to above, Howard, C.J. also stated in the course of hisjudgment, “ Section 79, therefore, enables a person to put forward aplea of a mitigatory and exculpatory character ”.
As stated earlier, on a careful reading of the summing up as a whole,we are unable to say that there was a misdirection on the question ofdrunkenness.
The application is refused and the appeal dismissed.
A. M. P. RATNAYAKE, Appellant, and THE QUEEN, Respondent