065-NLR-NLR-V-54-ATTONEY-GENERAL-Appellant-and-K.D.-JOHN-PERERA-Respondent.pdf
Attorney-General v. John Perera
265
[In the Privy Council]
1952 Present: The Lord Chief Justice of England (Lord Goddard),Lord Oaksey, Lord Reid, Lord Asquith of Bishopstone and ' •Sir Lionel Leach-ATTORNEY-GENERAL, Appellant, and K. D. JOHN PERERA,
Respondent
Privy Council Appeal No. 14 of 1952G. G. A. Application 85—M. G. Badulla, 11,357
Privy Council—Appeal by Croton in criminal case—Jurisdiction to entertain it—Charge of murder—Plea of grave and sudden provocation—Retaliation—Mustbear some relation to the provocation—Penal Code, s. 294, Exception 1.
The Privy Council has jurisdiction to entertain an appeal by the Crown in acriminal case. One ground upon which the Board would entertain such anappeal is that the decision appealed from tends to divert tfye due and orderlyadministration of the law into a new course, which may be drawn into an evilprecedent in future.
Where the mitigatory plea of grave and sudden provocation is taken underException 1 to Section 294 of the Penal Code, the accused muS show that thekind of provocation actually given was the kind of provocation which the jury asreasonable men would regard as sufficiently grave to mitigate the actual killingof the deceased person.
“ The words 1 grave ’ and * sudden ’ are both of them relative terms and mustat least to a great extent be decided by comparing the n'ature of the provocationwith that of the retaliatory act. It is impossible to determine whether the pro-vocation was grave without at the same time considering the act which resultedfrom the provocation ; otherwise some quite minor or trivial provocation mightbe thought to excuse the use of a deadly weapon.”
./^.PPEAL by special leave from a judgment of the Court of CriminalAppeal reported in (1951) 53 N. L. M. 193.
Sir Frank Soskice, Q.G., with Frank Galvan, Q.G., and H. A.Wijemanne, for the Attorney-General, appellant.
Dingle Foot, with A. B. Perera and Biden Ashbrooke, for the accusedrespondent.
Cur. adv. vult.
12LTV.
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LORD SODDAED—Attorney-General v. John Perera
November 19, 1952.[Delivered by Lord Goddard]—
This is an appeal by special leave from a decision of the Court ofCriminal Appeal of Ceylon delivered on the 29th November, 1951,which by a majority of four to one allowed an appeal by the respondentagainst his conviction before Mr. Justice Gratiaen and a jury for themurder of a woman named Kumarihamy. The Court of Criminal Appealset aside the verdict and sentence and ordered a new trial as they areentitled to do if, in the words of the Ordinance establishing the Court, “ theyare of opinion that there was evidence before the jury upon which theaccused might reasonably have been convicted but for the irregularityupon which the appeal was allowed ”. At the conclusion of the argumentTheir Lordships announced that they would humbly advise Her Majestythat the appeal should be allowed and that the judgment and order of theCourt of Criminal Appeal should be set aside and that the verdict of thejury and the sentence passed thereunder should be restored. They nowproceed to give their reasons.
The question raised by this appeal is one of considerable importancein the law of Ceylon for not only does there appear to be a considerableconflict of judicial opinion on the matter among the Judges forming theCourt of Criminal Appeal but in the previous case of R. v. Naide1 ajudgment was given in direct conflict with that now under appeal.The three Judges who first heard this appeal were divided in opinion andthe majority doubted the correctness of the decision in Naide's case andaccordingly a further hearing was directed by the Chief Justice and aCourt of five. Judges was constituted to hear this appeal. The groundupon which the appeal was argued before the Court of Criminal Appealwas that the learned trial Judge had wrongly directed the jury that adefence of provocation could not succeed and the charge of minder couldnot therefore be reduced to culpable homicide not amounting to minderunless the action of the respondent taken by him in consequence of theprovocation was reasonably commensurate with the degree of provocationoffered to him. The Court of Criminal Appeal held that this was a mis-direction and it is against that decision that this appeal is brought.Various other grounds were raised in the notices of appeal both to theCourt of Criminal Appeal and to the Board, but they were not pursued andthis particular alleged misdirection was the only matter argued beforeTheir Lordships. A preliminary point, however, was taken by counselfor the respondent who submitted that the Board had no jurisdictionto entertain an appeal by the Crown in a criminal case. It was submittedthat if a decision had once been given in favour of the prisoner no appealcould be brought, reliance being placed upon the doctrine that after anacquittal a prisoner could never be put in peril again. The order of theCourt of Criminal Appeal in this case does not amount to an acquittal. Itmerely sets ’aside the verdict and sentence and orders a new trial though nodoubt the effect of the order is to restore the prisoner to the positionof one who has not yet been tried. It is not on this ground that theBoard decided they had jurisdiction to entertain the appeal but becausea series of cases has decided, in their opinion, that Her Majesty in
1 {1951) 53 N. L. B. 207.■ .•
LORD GODDARD—Attorney-General v. John Per era
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Council has power to entertain an appeal from any Dominion or Depen-dency of the Crown in any matter whether civil or criminal by whicheverparty to the proceedings the appeal is brought unless that right has beenexpressly renounced.
The first case to which Their Lordships refer and which has beenrepeatedly cited with approval is Reg v. Bertrand 1. That was an appealby the Attorney-General of New South Wales on behalf of Her Majestyagainst an order of the Supreme Court who made absolute a rule nisi fora new trial obtained by the respondent who had been convicted of murder.It was objected that the Board ought not to entertain the appeal. Thematter was argued before a Board consisting of'Sir John Coleridge, SirWilliam Erie, Sir Edward Vaughan Williams, The Lord Chief Baron andSir Richard Kindersley. In giving the judgment of the Board Sir JohnColeridge said “ Upon principle, and reference to the decisions of thisCommittee, it seems undeniable that in all cases, criminal as well as civil,arising in places from which an appeal would lie, and where, either by theterms of a Charter or Statute, the authority has not been parted with, it isthe inherent prerogative right, and, on all proper occasions, the duty, of theQueen in Council to exercise an appellate jurisdiction, with a view not onlyto ensure, so far as may be, the due administration of justice in theindividual case, but also to preserve the due course of procedure generally.The interest of the Crown, duly considered, is at least as great in these res-pects in criminal as in civil cases ” and he then proceeded to point out thatfor reasons which are nowadays well understood these appeals wouldnecessarily be rare. In R. v. Murphy 2, Bertrand's case was followed andspecial leave to appeal was granted to the Crown. In R. v. Coote 3,the Board entertained an appeal against a judgment iof the Courtof Queen’s Bench of Quebec and though that case was argued only by theCrown, the respondent not being represented, Their Lordships who heardthe case evidently had no doubt as to their power for they allowed theappeal and ordered that the judgment which had quashed the convictionshould be reversed ; they affirmed the conviction and directed the Court ,to cause the proper sentence to be passed thereon. Coming to morerecent times in Ibrahim v. Rex 4, Lord Sumner in giving the judgment of theBoard dealt with the grounds upon which the Board entertained appealsin criminal cases. He said “ There must be something which, in theparticular case, deprives the accused of the substance of fair trial and theprotection of the law, or which, in general, tends to divert the due andorderly administration of the law into a new course, which may he drawninto an evil precedent in future ” and for this he cited Bertrand's case. InNadan v. Rex s, Lord Cave said “ The right (i.e. of appeal) extends(apart from legislation) to judgments in criminal as well as in civil cases ”and for this he cited Bertrand's case and that case was again cited inArribard v. Attorney-General for Trinidad 6, on the point as to whetherthe Board had jurisdiction to entertain the appeal. In not one of these 'cases does there appear to have been any doubt expressed as to the rightof the Board to entertain an appeal hy the Crown in a criminal case
1L. R. 1 P. C. 520.
L. JR. 2 P. C. 35.
I,. JR. 4 P. C. 599.
(1914) A. C. 599.
5 (1926) A. G. at page 491.
(1936)A. C. 322.
2tfS
LORD GODDARD—Attorney-General v. John Per era
and Their Lordships accordingly held that they had jurisdiction toentertain the appeal. In "view of the conflict of authority and judicialopinion existing in Ceylon on the subject-matter of this appeal to whichreference has been made above, this is eminently a case fit to be con-sidered by Her Majesty in Council and would seem to fall directly withinthe concluding words quoted above in Lord Sumner’s judgment inIbrahim v. Rex.
Turning now to the facts, it is enough to say that the case made at thetrial was that ill-feeling had long existed between the respondent and thefamily of the deceased and on the day in question he shot and killed thewoman Humarihamy and other members of her family and it was soughtto reduce the crime from murder to manslaughter by reason of certainprovocation consisting of stone-throwing by the woman’s family, andthreats uttered by them, so that, the respondent said, he was suddenlyprovoked and at the same time felt serious danger to his life and that hedid not know what happened as he had lost control over himself. It isunnecessary for the purposes of this appeal to further set out the facts asthe only question raised was with regard to the direction which the learnedJudge gave and which has already been stated. The Court of CriminalAppeal were at pains to consider whether the law relating to homicide andthe reduction of a crime from murder to manslaughter in England wasthe same as in Ceylon where the lesser crime is known as culpable homicidenot amounting to murder. The Court were of opinion that while it wasundoubtedly the law in England that the act of retaliation must bereasonably commensurate with the provocation received, this was not thelaw of Ceylon. The question that falls for decision is one in the opinionof Their Lordships which'depends entirely upon the true construction ofsection 291,.of,the Pepal Code. That Code does not provide for anydoctrines of English law to be imported into the criminal law of Ceylon.There is no provision similar to that which is found in the Code of CriminalProcedure whereby the English criminal law can. be used to fill any gapwhich may be found to exist in that Code. But as the Court of CriminalAppeal set out in their judgment T^hat they conceived to be the Englishlaw relating to manslaughter Their Lordships feel bound to observe thatin one respect the Court were in-error. They said in reference to Englishlaw “ if it is established or clear from the evidence that though provocationof howsoever grievous a kind may have been offered, nevertheless, if itcould be. shewn that the accused caused the death with an intention tokill, the offence is one of murder and not manslaughter., This is one ofthe fundamental differences between our Law and- that of EnglandA little further down in the judgment they said “ in the case of murder,there must be an intention to kill, in the case of manslaughter, no suchintention can exist ”. With all respect to the Court that is not the law ofEngland. In TtVngljgh law no doubt there is a distinction between whatis generally called involuntary and voluntary manslaughter. The formerexpression is used to describe that class of manslaughter where the deathis caused by gross and culpable negligence, the most common exampleof which is death caused by the dangerous driving of a motor vehicle.In such a case there is of couijse no intention either to kill or to causegrievous bodily harm and no question of provocation can arise in such a
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case. The defence of provocation may arise where a person does intendto kill or inflict grievous bodily harm but his intention to do so arisesfrom sudden passion involving loss of self-control by reason of provocation.An illustration is to be found in the case of a man finding his wife in theact of adultery who kills her or her paramour and the law has alwaysregarded that, although an intentional act, as amounting only to man-slaughter by reason of the provocation received although no doubt theaccused person intended to cause death or grievous bodily harm. Nowsection 294 of the Ceylon Penal Code provides that culpable homicide ismurder firstly if the act by which the death is caused is done with theintention of causing death, secondly if it is done with the intention ofcausing such bodily injury as the offender knows to be likely to cause thedeath of the person to whom the harm is caused and there are two otherprovisions which it is unnecessary to set out. The Code then goes onto set out an exception in these terms : “ Culpable homicide is not murderif the offender while deprived of the power of self-control by grave andsudden provocation, causes the death of the person who gave the pro-vocation, or causes the death of any other person by mistake or accident.”It also provides that “ Whether the provocation was grave and suddenenough to prevent the offence from amounting to murder is a questionof fact.” In order to reduce the crime from murder to manslaughterthe offender must show first that he was deprived of self-control andsecondly that that deprivation was caused by provocation which in theopinion of a jury was both grave and sudden. In directing the jury thatthey must ask themselves whether the kind of provocation actuallygiven was the kind of provocation which they as reasonable men wouldregard as sufficiently grave to mitigate the actual killing of the woman,in the opinion of Their [Lordships the learned Judge was merely directingthe jury as to how they should determine whether the ^provocation wasgrave. The words “ grave ” and “ sudden ” are both of them relativeterms and must at least to a great extent be decided by comparing thenature of the provocation with that of the retaliatory act. . It is impossibleto determine whether the provocation was grave without at the sametime considering the act which resulted from the provocation ; ^otherwisesome quite minor or trivial provocation might be thought to excusethe use of a deadly weapon. A blow with a fist or with the open handis undoubtedly provocation and provocation which may cause thesufferer to lose a degree of control but will not excuse the use of a deadlyweapon, and in the opinion of Their Lordships it is quite wrong to saythat because the Code does not in so many words say that the retaliationmust bear some relation to the provocation it is true to say that thecontrary is the case. –
Their Lordships having considered with care the whole of the summing-up are of opinion that it was quite impeccable and was in accordancewith the Law of Ceylon and for these reasons have tendered to HerMajesty their humble advice that the appeal should be allowed.
Appeal allowed,
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