Gamini v. The Attorney-General
COURT OF APPEALJAYASURIYA, J.,
C.A. NO. 181/96
C. COLOMBO NO. 7474/95OCTOBER 28, 1998
Criminal Law – Reckless and/or negligent having – Res ipsa loquitur – plea ofepilepsy and defence of automatism – Burden of proof – S. 298, 328 Pena!Code – S. 420 Criminal Procedure Code – S. 105 Evidence Ordinance.
The lorry driven by the accused halted at a signal post. Thereafter, the vehiclewas driven very fast, went over to the opposite side of the road where it knockeda pedestrian, crashed on to a CEB transformer and then damaged a house onthe edge of the roadside. The accused in his dock statement stated that fromhis early childhood he had been subject to epilepsy. On the day in question hehad driven the lorry from Kurunegala. When he reached Colombo, he had feltfaintish. He then washed his face and continued to drive. He halted the lorryat the signal light post at Armour street and on the Green light coming on, hecommenced to drive on and as he was driving he felt faintish, his eyesight failedhim and he became unconscious. He did not know what happened thereafterand he regained consciousness at the Armour Street Police Station. He washospitalized for three days. An EEG examination done at the National Hospitaland on the report and certificate admitted formally in terms of section 420 ofthe Code of Criminal Procedure Act without proof the plea that the accused wassuffering from epilepsy at the time of the incident and the defence of automatism.
The use of the criterior of external physical factors and internal physicalfactors to distinguish between plea of automatism and insanity is whollyincongruous in the law of Sri Lanka.
Our law is that in a plea of automatism the accused must lay a sufficientfoundation for his plea by leading evidence that his mind was not controllinghis limits at all at the time of the commission of the offence. It is not
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sufficient for the accused to lay the foundation and discharge his evidentialburden by establishing that his mind was acting imperfectly at that time,if he was still reacting to stimuli and controlling his limbs in a purposiveway. In such an event he would fail to lay a sufficient foundation for theplea of automatism. He must establish that his acts were wholly conclusiveand not purposive in any manner.
As the State Counsel has formally admitted the contents of the report andcertificate of the doctor who issued the certificate in respect of the accusedand taking in conjunction the evidence given by the accused in the Dock,the defence has placed a sufficient foundation for the plea of automatismand thereby rebutted the provisional presumption of mental capacity andonce that provisional presumption of mental capacity was displaced, thelegal burden lay on the prosecution discharge the ultimate burden of provingthat the accused's act was voluntary. The evidence led by the accusedin laying a sufficient foundation for the plea of epilepsy has thrown areasonable doubt on the ingredient of the offence, ie the proof of a voluntaryact against the accused on the part of the prosecution and he is entitledto be acquitted.
Cases relied on:
Perera v. Amerasinghe, SI Police, Ratnapura – 41 CLW 92.
Halliwell v. Venabeles – (1930) 99 Law Journal King's Bench 353.
Kalansuriya v. Johoran – 48 NLR 400.
Bratty v. Attorney-General for North Ireland – (1963) AC 386, 407, 408,409, 413, 414.
Rex v. Charlson (1955) 1 WLR 317.
Hill v. Baxter (1958) 1 QB 277, 282 – (1958) 2 WLR 761.
R. v. Lobell – (1957) 1 QB 547.
Director of Public Prosecutions v. Wolmington – (1935) AC 462.
King v. Chandrasekera – 44 NLR 97.
Queen v. Jayasena – 72 NLR 313.
Mancini v. D. P. P. – (1942) AC 1.
Regina v. Sullivan – (1984) AC 156, 172.
Regina v. Hennessy – (1989) 2 All ER 9.
R. v. T. (1990) Criminal Law Review 256.
Regina v. Quick – (1973) QB 910, 922 (1973) 3 All ER 347.
R. v. Bailey – (1983) 1 WLR 780.
Watmore v. Jenkins – (1962) 3 WLR 463.
Broome v. Perkins — (1987) Criminal LawReview271.
Attorney-General's reference No. 2 of 1992-(1993)97 Criminal Appeal
Regina v. Douglas Lance Isitt – (1978) 67 Criminal Appeal Reports 44.
Roberts v. Ramsbottom – (1980) 1 All ER 7.
Gamini v. The Attorney-General
APPEAL from judgment of the High Court of Colombo.
Dr. Ranjith Fernando with Nihal Gunasinghe, Ms. Anoja Jayaratne andMs. Subashini Godagama for accused-appellant.
Vijith Malalgoda, SSC for the Attorney-General.
Cur. adv. vult.
October 28, 1998.
The accused-appellant, upon this prosecution, has been charged withdriving lorry bearing No. 27 Sri 669S recklessly and/or negligently andwith having caused the death in count No. 1 of Suppiah Alageswaranand in count Nos. 2 and 3 with having caused hurt to KiramaKankanamage Ariyadasa and Mariapillai Rengasamy, in terms ofsection 298 and section 328 of the Penal Code, respectively.
The evidence elicited by the prosecution disclosed that this particularlorry was halted at a signal light post in a stationary position andthat, thereafter, the vehicle had been driven very fast and in theprocess that it went over to the opposite side of the road, knockeda pedestrian who was walking on the edge of the pavement on theopposite side and had crashed against a transformer belonging to theCeylon Electricity Board and thereafter had proceeded again andcaused damage to a house which was situated on the edge of theroadside. These facts which disclosed that the lorry in question wasdriven at a very fast speed right across the road in question gaverise to the presumption Res ipsa loquitur. Vide Perera v. AmerasingheiHalliwell v. VenabeiesPK Kalansuriya v. JohorarP> per JusticeWijewardena. Justice Wijewardena upheld the submissions of Crowncounsel upon a charge of criminal negligence that a lorry going offthe road raises a presumption arising from the application of the maximRes ipsa loquitur. However, at the trial, the accused had produceda medical report and certificate to the effect that he was subjectedto Electroencephalogram (EEG) which was held on the very day thatthis motor collision occurred and the medical expert who had issued
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that report and certificate had stated in it that having regard to thetest carried out by him on the day of the incident itself that the accusedwas prone to epilepsy and that the EEG confirmed that "he wassuffering from temporal lobe epilepsy”.
On the 11th of November, 1996, after the accused had made astatement from the Dock, learned counsel appearing for the accusedat the trial moved to mark this medical report and medical certificateissued in respect of the accused-appellant – Mudunkotgedera Gaminion 19. 10. 92, which was the date of the incident, and which documentwas listed as item 12 in the list of documents attached to theindictment, without calling the medical expert, through the officiatingRegistrar of the Court. At this stage learned State counsel whoappeared at the trial stated to Court that she was formally admittingthe contents of the aforesaid report and its correctness andgenuineness and moved that the contents of the aforesaid report andcertificate be formally admitted without the necessity of proving itscontents in terms of section 420 of the Code of Criminal ProcedureAct. Thus, in view of this concession and representation on the partof the State Counsel, the contents of this document were unfortunatelyformally admitted and the medical expert who issued this report andcertificate was not called as a witness. The accused in his Dockstatement has stated that from his early childhood he had been subjectto epilepsy and his mother had taken care of him. On the day inquestion he had proceeded from Kurunegala driving this lorry towardsColombo and when he reached Colombo that he had felt faintish andthereafter he had washed his face and continued to drive the lorrywhich had to be brought to a halt at the signal light post fixed atArmour street. Thereafter, on noticing the green light, he commencedto drive the lorry and as he was driving the lorry that he felt faintishand thereafter his eyesight failed him and that he was unconsciousand he did not know what transpired thereafter and that he regainedconsciousness at the Armour Street Police Station. He has statedthat thereafter he was admitted to the hospital and he was treatedin the hospital for three days. The EEG examination had been carriedout at the National Hospital. Thus, the accused in his Dock statementhas related certain facts which taken in conjunction with the contentsof the report and the certificate which were admitted formally in terms
Gamini v. The Attorney-General
of section 420 of the Code of Criminal Procedure Act without proof,had raised the plea of epilepsy, that the accused was suffering fromepilepsy at the time of the incident and the defence of automatism.
Lord Denning in Bratty v. Attorney-General for North Ireland4> dealtwith the plea of automatism which is, in effect, a plea that the actin question was involuntary and proceeded to explain the plea in thefollowing words : "An act which is done by the muscles without anycontrol by the mind such as a spasm, a reflex action or a convulsion;or an act done by a person who is not conscious of what he is doing,such as an act done whilst suffering from concussion or whilst sleepwalking". Thus, the plea is in effect that the act which is relied uponto prove the actus reus, was involuntary and not willed. In Rex v.Charlsorf5) the accused was charged under the provisions of theoffences against the Person Act with unlawfully and maliciously causinggrievous bodily harm with intent to murder his ten-year old son whomhe struck twice on his head with a wooden mallet and thereafter threwthe boy out of the window into the river twenty-feet below. The boysuffered severe injuries to his leg and arm but succeeded in crawlingout of the water. The accused admitted striking the boy but said hedid not know why he had done so. Evidence was elicited at the trialthat the accused was sane and had no disease of the mind whatsoeverbut there was evidence in regard to the clinical examination and thehistory of the accused which pointed to the possibility that the accusedwas suffering from cerebral tumour in which case he would be liableto motiveless outbursts of impulsive violence over which he wouldhave no control at all. Justice Barry dealt with the necessity on thepart of the prosecution of proving a conscious and voluntary act onthe part of the accused. Justice Barry remarked : "That means thatthere must be a conscious act on the part of the accused. A personsuffering from a disease may be deprived of the control of his actions… A man in the throes of an epileptic fit does not know whathe is doing . . . The actions of an epileptic are automatic andunconscious and his will and consciousness will not apply to whathe is doing … if he did not know what he was doing, if his actionswere perfectly automatic and his mind had no control over the movement
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of his limbs, if he was in the position as a person in an epilepticfit, then no responsibility rests upon him at all and the proper verdictis not guilty of all three charges0.
However, the question arises whether a proper foundation has beenlaid in this case for a plea of automatism to be considered by theCourt. In this particular prosecution the accused has pleaded thus :“ I do not know what happened; I cannot remember a thing" as wasasserted by the accused in Hill v. Baxter (6>. But learned State counselhas formally admitted the contents of the report and the certificatethat the accused was suffering from temporal lobe epilepsy on thevery date that the incident occurred. The accused has also referredin his Dock statement to his past history of the same illness and hasstated that after the green light came on, he commenced driving thelorry but soon after that he had fainted and become unconscious andhe did not know what happened thereafter till he regained conscious-ness much later at the Armour Street Police Station. He was admittedto hospital and received treatment at the hospital for three days. TheEEG examination was carried out on him at the National Hospital,Colombo. Since the foundation for the plea of automatism had beensufficiently placed before the Court, the accused through the mediumof this plea was, in effect, throwing doubt and negativing proof thathe had committed a voluntary and self-willed actus reus. Vide Articleby S. Prevezer – Automatism and Involuntary Conduct – 1958 CriminalLaw Review 361 at 362. It is always open to an accused personthrough evidence or through suggestions or by cross-examination tocast a reasonable doubt as tq any of the ingredients of the offencesuch as the voluntary actus reus which the prosecution is obliged toestablish beyond reasonable doubt. Now, adverting to the submissionsof learned senior State counsel state that in such circumstances thereis no legal burden on the accused of proving any fact and neitheris there any standard of proof to be achieved or discharged by himwhen he is engaged in the process of throwing doubt on theprosecution case. Hence, the issue before this Court is not whetherthe accused has discharged a legal onus or standard of proof butwhether the accused has involved in doubt and thrown sufficient doubt
Gamini v. The Attorney-General
on the actus reus of the offence which is the commission of a voluntaryand willed act on the part of the accused. The pleas of automatismand the pleas of epilepsy have been put forward by the accused inthis case with that object in mind. The learned trial judge has failedaltogether to view and consider this plea in its legal perspective. Hehas failed and omitted to give his mind to the issue whether theprosecution has proved a voluntary and conscious act as againstthe accused beyond reasonable doubt. But, on the contrary, he hasheld against the accused and arrived at the conclusion that theaccused is guilty of the offence on the reasoning that even if theaccused got into this state he ought not to have driven the vehicleany further and his act of driving the vehicle amounted to negligence.This reasoning discloses a failure to correctly comprehend, analyseand evaluate the contents of the Dock statement made by the accused.We further hold that it is a wholly unsatisfactory and illegal basis fora conviction on the charges.
In view of the submissions advanced by senior State counsel beforethe Court of Appeal, a restatement of the law on this point, withparticular reference to the legal burden, standard of proof, and theevidential burden becomes necessary. The prosecution was under aduty to establish against the accused the doing of a voluntary, consciousand willed act. The prosecution could in this context rely on thepresumption of mental capacity, which is a provisional presumption,to establish the voluntary nature of the act. Then, if the accusedsucceeds in placing a sufficient foundation for a plea of automatismthat either the act was committed due to concussion, whilst sleepwalking or due to epilepsy, the aforesaid provisional presumption isdisplaced and the prosecution is required to prove the legal burdenand discharge the ultimate burden of proving that the act wasvoluntary. However, in order to displace the presumption of mentalcapacity, defence must place a sufficient foundation by evidence fromwhich it may reasonably be inferred that the act was involuntary.Vide article Automatism as a Defence, 74 LQR 176. Once the defencedischarges this evidential burden, the legal burden and the ultimateburden of proof, that the act was voluntary is on the prosecution. Forthe distinction between the Evidential Burden and the Legal Burden- Vide article by Lord Denning in 61 Law Quarterly Review, page379. It must be emphasised that there is no legal burden on theaccused to prove his act was involuntary. Vide R. v. LobelP for, aslaid down in the celebrated case of DPP v. Wotmingtori81 it is for
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the prosecution to prove the elements of its charge – King v.Chandrasekera<9>; Queen v. Jayasend'°' Mancini v. DPP"' One ofthese elements is that the accused's act is voluntary, conscious andwilled. Thus, where the defence has discharged its evidential burdenand ultimately the Court or jury left in doubt whether or not the accusedacted in a state of automatism, on principle the accused ought tobe acquitted on the footing that the actus reus has not been provedbeyond reasonable doubt by the prosecution. Vide the decisions inR. v. Charisoti51 (supra) and the judgments delivered by ViscountKilmuir, Lord Chancellor and by Lord Denning in Bratty v. Attorney-General for North Ireland41 (supra). Thus, it is always open to thedefence, after placing, by sufficient material, a proper foundation fora plea of automatism, to throw doubt on the ingredient of a voluntaryand conscious act on his part and thereby secure an acquittal.
If the above statement of the law represents the correct position,it may be argued that the statement of the law is not sound sincea defence of automatism is very near and close to the defence ofinsanity and it would be anomalous if there were to be any distinctionbetween the one plea and the other [vide the observations of LordGoddard in Hill v. Baxter (supra). If the jury are to be directed toacquit the accused, if and only if they were satisfied on a balanceof probability that the accused has acted in a state of automatism,in the same manner – as under the McNaughton Rules – that theaccused must establish on a balance of probability that necessaryrequirements of the plea of insanity are satisfied. Such a propositionof law is not warranted because a plea of insanity is a generalexception which falls within the ambit of chapter IV of the Penal Code- whereas, a plea of automatism does not. Dealing with generalexceptions sections 105 of the Evidence Ordinance enables the Courtto presume the absence of circumstances, bringing a case withinthe ambit of a general exception. It further postulates that the accusedmust prove those circumstances on a preponderance probability. Itmust be stressed that the plea of automatism does not constitute ageneral exception. It is a plea asserting that the prosecution has notproved an element of the offence – conscious and voluntary act on. the part of the accused and, having regard to the principles laid downin Wolmington's Case, it is trite law that the prosecution must proveevery element of the offence charged and the legal burden of provingultimately the voluntary character of the act is on the prosecution.
Gamini v. The Attorney-General
In these circumstances, the doubt entertained by Lord Goddard in Hillv. Baxter (supra) is wholly misconceived and without foundation.
There have been developments taking place in English Law whereviews have been expressed dissenting from the reasoning of LordKilmuir and Lord Denning. The distinction which emerges from thesubsequent development centers on classifying causes as beinginternal or external. In the case of Regina v. Sullivarf'2* Lord Diplockimplicitly accepted the distinction between internal and external causes.Lord Diplock in R. v. Sullivan (supra) at page 172 remarked :
"If the effect of the disease is to impair [the facilities of reason,memory and understanding] so severely as to have either of theconsequences referred to in the latter part of the rules, it mattersnot whether the aetiology of the impairment is organic, as inepilepsy or functional, or whether the impairment is permanent oris transient and intermittent – provided it subsisted at the time ofthe commission of the offence."
A verdict of not guilty on the basis of automatism would thus beacceptable in "Cases where temporary impairment . . . results fromsome external physical factor such as a blow on the head causingconcussion or the administration of an anaesthetic for therapeuticpurposes, whereas, stress, anxiety or depression or epilepsy whichlead to impaired consciousness are not classified as external physicalfactors and are treated as a plea of insanity and legal burden is caston the accused. Further, the verdict is guilty but the offence has beencommitted due to a mental condition. Thus, only unconscious andinvoluntary conduct traceable to an external physical factor enablesthe plea of automatism to be put forward. But unconscious act causedby an internal physical factor does not permit the plea of automatismto be put forward and to be successful in obtaining an acquittal byinvolving in doubt the voluntary character of the act. (Vide Regina v.Sullivart'2) (supra)’, Regina v. Henness/'^’, R. v. T.(141; Regina v.Quictf's) per Lawton, LJ.
We would not follow this development of the law in England andwe would lay down the law for Sri Lanka adopting the principles laiddown by Viscount Kilmuir, Lord Chancellor and Lord Denning. Thisdevelopment of the English Law is inconsistent with the scheme and
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symmetry of the Evidence Ordinance relating to burden of proof andof chapter IV of the Penal Code of Sri Lanka. Besides, the incongruityan untenability of this development is manifested on a considerationof two connected situations –
If a diabetic injects an excessive dose of insulin and commitsa violent assault when suffering from hypoglycaemia in anunconscious state, it is said that as the malfunctioning ofthe mind of a transitory effect was caused by an EXTERNALfactor, the plea of automatism is available to him and thereis no legal burden on him to discharge.
If a diabetic patient commits a violent assault when sufferingfrom hypoglycaemic coma caused by over production ofinsulin by an overactive pancreas, it is ruled that it is aninternal cause, and the plea of automatism is not availableto him as it is classified as a disease and he is requiredto discharge a legal burden in setting up the defence ofinsanity. Vide for an interesting article – Defence of Automa-tism and Diabetes (Maher) 99 LQR 511; Ft. v. Hennessy(supra), Ft. v. Baileyi6>; Watmore v. Jenkins^,7) accused alldiabetics. Vide article – Epileptic's plea of Automatism -99 LQR 506 – (Smith).
The use of the criterion of Internal/External causes to distin-guish between pleas of Automatism and Insanity in this manneris wholly incongruous and fatuous and would not be adoptedin the Law of Sri Lanka for the reasons already adumbrated. Thisdistinction is "an affront to common sense".
However, we stress and emphasise that in a plea of automatism,the accused must lay a sufficient foundation for his plea by leadingevidence that the accused's mind was not controlling his limbs at allat the time of the commission of the offence. It must be stressedthat it is not sufficient for the accused to lay the foundation anddischarge his evidential burden by establishing that his mind wasacting imperfectly at that time, if he was still reacting to stimuli andcontrolling his limbs in a purposive way. In such an event he wouldfail to lay a sufficient foundation for the plea of automatism. He must
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(Jayasuriya, J.) 331
establish that his acts were wholly convulsive and not purposive inany manner. See article – Automatism whilst driving 78 LQR 476 at476 end to 477. Vide Broom v. Perkinsfie> Attorney-General's Reference[No. 2 of 1992](,9>; Regina v. I SitP01; Roberts v. RamsbottorrPAsthe state counsel has formally admitted the contents of the report andcertificate of the doctor who issued the certificate in respect of theaccused and taking in conjunction the evidence given by the accusedin the Dock, the defence has placed a sufficient foundation for theplea of automatism and thereby rebutted the provisional presumptionof mental capacity and one that provisional presumption of mentalcapacity was displaced, the legal burden on the prosecution todischarge the ultimate burden of proving that the accused's act wasvoluntary. The evidence led by the accused in laying a sufficientfoundation for the plea of epilepsy has thrown a reasonable doubton the ingredient of the offence, ie the proof of a voluntary act againstthe accused on the part of the prosecution and, in the circumstances,we allow the appeal, set aside the finding, conviction and sentenceimposed on the accused. However, we record and firmly lay downone finding that the accused has committed without consciousnessand without volition the act or criminal negligence as defined in section298 and section 328 of the Penal Code, respectively and in thecircumstances we make order suspending his driving licence until heappears before three medical boards each held annually and till adetermination that he is in a fit condition to drive motor vehicles isissued by the said three medical boards in a time-frame of three years.The accused in his present condition must not be permitted to bea source of danger to the community and to himself by driving motorvehicles until such a determination is reached by the aforesaid medicalboards. He should not be kept at large to drive motor vehicles tothe detriment of the community and himself. Subject to this directionand order, the appeal is allowed.
KULATILAKA, J. – I agree.
Appeal allowed subject to conditions.Driving Licence suspended.
GAMINI v. THE ATTORNEY-GENERAL