051-NLR-NLR-V-56-D.-M.-MUTHU-BANDA-Appellant-and-THE-QUEEN-Respondent.pdf
ROSE C.J.—Muihu Banda v. The Queen
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[Court of Criminal Appeal]
1954 Present: Rose C.J. (President), Pulle J., Swan J.t Sansonl J.and Fernando A.J.D. M. MUTHIJ BANDA, Appellant, and THE QUEEN, RespondentAppeal No. 52 of 1954S. C. 39—M. C. Kandy, 5,236
Culpable homicide—Provocation—Intoxication—Scope of its relevancy—Penal Code,e. 294, Exception 1.■
o
When considering, in a prosecution for murder, whether the accused wasdeprived of the power of self-control by grave and sudden provocation, thejury must apply an objective test, i.e., whether in the particular case underconsideration a reasonable or average man with the same background and inthe circumstance of life as the accused would have been provoked into seriousretaliation. The effect of this proposition is that the intoxication of the accusedis not to be regarded as affecting the gravity .of the provocation offered, andshould only be taken into account, together with the idiosyncrasies of healthand temperament, when the-jury determine subjectively whether or not theaccused lost his self-control under the stress of the provocation.
The King v. Punchirala (1924) 25 N. L. R. 458, overruled.
^^PPEAL against a conviction in a trial boforo the Supreme Court.
G. E. GhiUy, with L. F. Ekanayake, A. -S'. V anigusooriyar anti DayaVetera, for the accused appellant.
U..-1. Wijemanne, Crown Counsel, with V. S. A. Pullenayagam andE. II. G. Joyetileke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 21, 1954. Rose C.J.—.
The principal matter that we have to consider is whether the law iscorrectly stated in a passage from the charge of the learned trial Judgedealing with the exception of grave and sudden provocation. Thepassage in question appears at page 11 of the charge and reads as follows;
“ Mr. Carthigesu, I wish you to follow this carefully, because I amdeliberately directing the Jury in a sense which I know is not the sensein which the matter is understood sometimes, and that there is authorityin favour of your view. Now gentlemen, by provocation is meantanything w'hich a reasonable man is entitled to resent. Provocation,as I said, must be sudden, and provocation must.be grave. Graveprovocation would be provocation that can cause a reasonable man,a man of ordinary sense and prudence and temper of the same classof life or station in life as the accused, to lose his power of self-control.It is quite possible that an act which may not cause a sober man to losehis self-control may cause a drunken man to lose his self-control.
10LVI
2J. N. B 42470-1,602 (2/55)
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Once you are satisfied that provocation was grave and that it wouldbe grave provocation to a reasonable man, then in considering whetherthis particular accused lost his self-control as a result of that provoca-tion you should take into account the circumstance that he was drunk,if you aro satisfied that he was drunk. But if you aro consideringwhether the provocation was grave, it is not opon to you to say, ‘ itis true that this act of the deceased man would not be grave provocationto a sober man but to a drunken man it would bo You will not takointo account the particular weakness of the accused when you areconsidering whether the provocation offered was grave. That questionyou will resolve by roforonce to an ordinary reasonable man, that isto a man who is sober. ”
The direction criticized in tliis appeal is that which expresses the propo-sition that in considering whether a particular episode contains the ele-ments of grave and sudden provocation the jury must apply an objectivotest, i.e. whether in the particular case under consideration a reasonableor average man with the same background and in the same circumstanceof life as the accused would have been provoked into serious retaliation.The effect of this proposition is that the intoxication of the accused is notto be regarded as affecting the gravity of the provocation offered, andshould only bo taken into account, together with the idiosyncrasies ofhealth and temperament, when the jury determine subjectively whetheror not the accused was acting under the stress of the provocation. Thematter has-been considered in the English Courts, not of course in referoncoto Section 294 of the Ceylon Penal Code but in the context of the EnglishLaw which, however, in tho matter which we are considering, wouldappear to be not dissimilar, in the recent case of Bedder v. Director ofPublic Prosecutions. 1
Li that case it was held by the House of Lords in a judgment deliveredby Lord Simonds L.C. that the test to be applied in deter mining whethorthere had been provocation sufficient to reduce tho homicide from murderto manslaughter was that of the effect of tho alleged provocation on thomind of a reasonable man ; and in applying this test the hypotheticalreasonable man did not have to be invested notionally with the physicalpeculiarities of the accused. In the course of his speech at pago 80iiLord Simonds quotes with approval a passage from the spcoch of LordSimon in Holmes v. Director of Public Prosecutions 2 : “ If, on the otherhand, the case is one in which the view might fairly bo taken (a) that areasonable person, in consequence of the provocation received, might beso rendered subject to passion or loss of control as to bo led to use tho vio-lence with fatal results, and (6) that the accused was in fact acting underthe Btress of such provocation, then it is for the jury to determine whetheron its view of the facts manslaughter or murder is the appropriate verdict ",and goes on to say, “ The argument, as I understood it, for the appellantwas that the jury, in considering the reaction of the hypothetical reasonableman to tho acts of provocation, must not only place him in tho circums-tances in which the accused was placed, but must also invest him with thepersonal physical peculiarities of the aooused. Learned counsel, who* {1964) 2 A.E.R. SOI.* (1946) 2 A. E. It. 121.
ROSE O.J.—JMuthu Banda v. The Queen
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argued the case for the appellant with great ability, did not, I think,venture to say that he should be invested with mental or temperamentalqualities which distinguished him from the reasonable man ; for thiswould have been directly in conflict with the passage from the recentdecision of this House in Mancini's case which I have cited. But he urgedthat the reasonable man should be invested with the peculiar physicalqualities of the accused, as in the present case with the characteristicof impotence, and the question should be asked : what would be thereaction of the impotent reasonable man in the circumstances ? Forthat proposition I know of no authority ; nor can I see any reason in it…. It was urged on your Lordships that the hypothetical
reasonable man must be confronted with all the same circumstances asthe accused, and that this could not be fairly done unless he was alsoinvested with the peculiar characteristics of the accused. But this makesnonsense of the test. Its purpose is to invite the jury to consider the actof the accused by reference to a certain standard or form of conduot andwith this object the * reasonable ’ or the ‘ average ’ or the ‘ normal 'mail is invoked. If the reasonable man is than deprived in whole or inpart of lus reason, or the normal man endowed with abnormal characteris-tics, the test ceases to have any value. This is precisely the considerationwhich led this House in Mancini's case to say that an unusually excitableor pugnacious person is not entitled to rely on provocation which wouldnot havo led an ordinary person to act as lie did ”.
In relation to tho question of intoxication of an accused the sameprinciple was applied in the case of R. v. McCarthy 1 where it was heldthat unless a man is in such a complete and absolute state of intoxicationas to make him incapable of forming the intent charged, drunkennesswhich may load him to attack another in a manner which no reasonable,sober man would do caimot bo pleaded as provocation reducing the crimefrom murder to in&nslaughter if death results. In this case, of course,tho jury had also to consider the quostion of whether the retaliation wasin fact out of proportion to the provocation alleged. But on the matterwhich we are considering in the present case it is clear that the learnedJ udgos of the Court of Criminal Appeal in England accepted and confirmedtho principle that the existence of provocation had to bo decided by theJury objectively, whereas the question whether tho accused was in factprovoked required subjective analysis.
Having rogard to these high authorities it seem1* to us that there canbo no doubt that the law was correctly stated by the learned trial Judgein the case now before ua. It only remains to consider two local authori-ties which learned Counsel for the appellant in the course of his ableargument suggested to us were to a contrary effect and should not lightlybo disregarded.
To deal with tho later case first, that of The Kingv. Marshall Appuhamy2,it seems to us that there is in fact no real conflict between the view of thelaw therein stated and that which we propose to follow in the presentmatter. The headnote of this case states: “Intoxication which falls short ofthe degree of intoxication contemplated by Section 78 of the Penal Codecould be considered in dealing with the question whether a man’s suscep->(1954) 2 A. E. It. 2G2.* (1949) 51 N. L. It. 140.
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tibility to provocation was affected by intoxication ” and in a passageat page 142, from which presumably the headnote is taken, Wijeyewardene
J. says : “ The Judge appears to have expressed himself in such a wayas to give the impression to the jury that any intoxication falling shortof the degree of intoxication contemplated by Section 78 of the PenalCode should not be considered in dealing with the question whether aman’s susceptibility to provocation was affocted by intoxicationThe judgment then piocoeds to express disagreement with that view.
So stated, we see no reason to dissent from the position there taken upnB it does not conflict with th“ view which we have set out above that thoquestion of intoxication, when it is insufficient to affect intont, comesproperly to be considered when the jury is answering the question whothorthe accused was in fact provoked by provocation which has boonobjectively established.
The second case, The King v. Punchirala *, might bo held to give rise todifficulty. In his judgmont at page 461, Bertram C.J. refers with approvalto the case of It. v. Thomas * where Baron Park (incorrectly in the judgmentdescribed as Jervis C.J.) said as follows : “ So drunkenness may be takeninto consideration in cases where what the law deems sufficient provoca-tion has been given, because the question is, in such cases, whether thofatal act is to be attributed to the passion-of anger excited by the previousprovocation, and that passion is more easily excitable in a person whenin a state of intoxication than when he is sober ”. Moreover, at page 463a passage from Stroud’s book on Mens Rea is cited with approval. Thofirst sentence reatls : “ Where an act of "violence, with which a prisoner ischarged, has ensued upon some provocation or aggression of such a kindthat, if sufficient in point of degree, it would suffice to relieve or modifyhis responsibility for the act in question, tho fact that ho was drunk mayhe taken into consideration by the jury ”.
Surprisingly, however, Bertram C.J. proceeds as follows : “ It appears,therefore, that wo should hold that the word ‘ grave ’ is not an absolutebut a relative term, and that in determining whether in any particularcase the provocation received was grave, the Court or Jury may takeinto account the intoxication of tho person roceiving it ”. With greatrespect to the learned Chief Justice, we feel that we have no alternativebut to say that this passage incorrectly states the law. For the reasonsthat we have already given, the true position would seem to bo that theintoxication of the accused in such a case, as is contemplated in King v.Punchirala only becomes relevant for the consideration of the jury whenthey are considering the question whether the accused was in fact pro-voked by provocation which would, in the opinion of the jury, haveprovoked a normal or average reasonable man.
We therefore regard the learned Judge’s summing-up in the case underappeal as being unexceptionable. Moreover, there is nothing in the recordto indicate that a reasonable jury could properly have come to any otherconclusion than to convict the appellant of murder.
For these reasons the appeal is dismissed and the conviction affirmed.
Appeal dismissed.
* (1837) 7 C. <b P. 817.
(1924) 25 N. L. R. 458.