089-NLR-NLR-V-53-JAMIS-Appellant-and-THE-QUEEN-Respondent.pdf
401
GRATIAEN J.—-Jamis v. The Quern
[Court of Criminal Appeal]
■1952 Present: Nagalingam A.C.J. (President), Gratiaen J.,Gnnasekara J., Pulle J. and de Silva J.J.MIS, Appellant, and THE QUEEN, Bespondent
Appplication No. 18 of 1952
S. C. 4—-V. <7. Kuruneijala, 1,92J ■
Penal Code. s. 294—Exception 1—Charge of murder—Plea of grace and suddenprovocation—Test of gravity.
Held (by the majority of the Court), that where the mitigatory plea of graveand sudden provocation is taken under Exception 1 to section 294 of the PenalCode, the accused must inter alia prove such provocation as is likelyto destroy the self-control of an average man of the class of societyto which the accused belongs. The modified test of gravity prescribedin Rex «. Punchirala (1924) 25 N. L. R. 458, as a special concession to a personin a state of intoxication, should not be extended to a case where a personpleading provocation relies on an idiosyncrasy or weakness of the will inducedby some other condition peculiar to himself. The idiosyncrasies of the accusedare material only in regard to the separate and distinct issue whether the accusedhad in fact lost his self-control under the stress of the provocation offered.
David Appuhamy v. The King (1952) 58 N. L. R. 313, overruled.
-Application for leave to appeal against a conviction in a trialbefore the Supreme Court.
V. S. A. PvXlenayagam, for the accused applicant.
T. S. Fernando, Crown Counsel, with /?. A. Kannangara, CrownCounsel, for the Attorney-General.
Cur. adv. vult.
April 24, 1952. Gratiaen J.—
This appeal was reserved by my Lord the Acting Chief Justice for thedecision of- a Bench of five Judges of this Court in view of a disagreementbetween the members of the Bench before whom the matter was firstlisted for argument. We regret that we have failed to arrive at unanimityin our decision, and the judgment which I am about to pronounce setsout the views of my brothers Gunasekara and Pulle and myself whoform the majority of the Court.
The appellant has been convicted for the murder of his mother-in-law,and we have been invited to quash the conviction on the ground thatthe learned presiding Judge misdirected the jury on the law with regard
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GRATIAEN J.—Jamis o. The Queen
to the appellant’s plea that he had caused the death of the woman con-cerned under the influence of “ grave and sudden provocation ” withinthe meaning of exception 1 to section 294 of the Penal Code. It wascontended that the jury had been misdirected as regards (a) the degree ofprovocation that had to be proved by the appellant and (6) the extent towhich certain evidence about the state of his health was material to hisplea of provocation.
On the first point, the learned Judge directed the jury that the provo-cation must be “so sudden and so grave as to cause the average man ofthe accused’s class to lose his self control ”. He said: —
“ Murder, gentlemen of the Jury?, is reduced to culpable homicidenot amounting to murder if the offender whilst deprived of the powerof self control by grave and sudden provocation causes the- death ofthe person who gave the provocation or causes the death of any otherperson by mistake or accident. First and foremost, there must beprovocation, something must have been done to provoke this accused,then that provocation must be sudden—if a person provoked meyesterday and I tried to retaliate today, it can hardly be said thatthat provocation was sudden—and the provocation must be grave,the provocation must be both sudden and grave, gentlemen of theJury, so sudden and so grave as to cause the average man of theaccused’s class to lose his self control. You must take the averageman or the reasonable man as he is sometimes referred to in law and,of course, in considering the ‘ reasonable man ’ you must considerthe class of society from which the accused comes, his education orlack of education, and you must look at the suddenness and the gravityof the provocation from the standard of the ordinary reasonable manof the class of society to which the accused person belongs. Thenif you are satisfied that the provocation proved in this case, establishedon a balance of evidence, was of such a nature in its suddenness andgravity as to provoke a person of this man’s type or class or society,you will ask yourselves whether in fact he lost his power of self-control.”
Similarly, at a later stage of his charge, the learned Judge, having referredin some detail to the evidence on which the defence relied in supportof the plea of provocation, stated as follows: —
“ If it (i.e., the accused’s version) is probably true, ask yourselveswhether as a result of grave and sudden provocation offered to theaccused he lost his power of self control and whilst deprived of thepower of self control he caused the death of the deceased Dingin'.Ask yourselves the question whether an average man of the accused’stype and class would lose his power of self control as a result of thatprovocation. If that be so, his offence would be one of culpablehomicide not amounting to murder.”
Learned counsel for the appellant submitted that the learned Judgemisdirected the jury by telling them, in effect, that if they were convincedthat the appellant had intentionally killed his victim, the plea of provo-cation could not succeed so as to reduce his offence to one of culpable
GBATIAEN JJamis o. The Queen
403
homicide not amounting to murder unless they were satisfied upon abalance of probability that the provocation alleged to have been offered notonly deprived him of his power of self control but was also of a hind whichwas likely to have caused an average man of the class of society to which theappellant belonged to lose his self-control. For the reasons which willfollow, we consider that this was an unexceptionable direction in law.
With regard to this ground of objection, we have been confronted witha recent decision to the contrary effect in Bex v. David Appuhamy et al.1in which the majority of a Bench of three Judges had ruled that a chargeto the jury in almost precisely similar terms did amount to a misdirection. .It was there conceded that the element of gravity did in fact introducean objective standard, but the Court decided that, for the purposes ofException 1, the provocation given would be sufficiently “ grave ” if itwere “ such as would cause deep resentment in the mind of a man ”,or, to quote another passage, sufficient merely " to cause the ordinaryman of the class to which the accused belongs to lose his temper ”, Thisformula purported apparently to draw a distinction between provocationof a kind which may cause a mere loss of temper from provocation whichis likely (although not necessarily certain) to result in an ordinary manlosing his power of self-control.
*“David Appuhamy’s case (supra) was the third of three recent decisionsof this Court as to the meaning of the words of Exception 1 to section 294.On 10th October, 1951, the majority of a Bench of three Judges decidedthat in this country, as in England, the plea of provocation was notavailable in cases “ where the mode of resentment was out of allreasonable proportion to the provocation alleged to have been givenRex v. Naide 2. On 29th November, 1951, however, the majorityof a Bench of five Judges over-ruled this decision, and held that ** therewas no room under our law for taking into consideration the mode ofresentment in determining the question whether the provocation givenwas either grave and sudden or whether there was loss of self-control.”The King v. Per era s. The Crown has since obtained special leave toappeal to the Privy Council against the decision in Perera's case and,pending the ruling of the Judicial Committee upon this appeal, we mustassume that The King v. Per era (supra) was correctly decided withregard to the particular issue upon which the Court had made a consideredpronouncement. I understand, however, • that my brother Judges whoheard Perera’s case regard certain incidental observations made in thejudgment of the Court with reference to other aspects of the law ofprovocation as obiter dicta. For instance, in The King v. David Appu-hamy (supra) two of the Judges who had decided Perera’s case took theview that the following passage in the earlier judgment: —
“ Provocation would be grave where an ordinary or an average manof the class to which this accused belongs would feel annoyed orirritated by the provocation given to the extent that he would, smartingunder the provocation given, resent the act of provocation or retaliateit ”
i (1952) 53 N. L. R. 313.* (1951) 53 N. L. R. 207.
3 (1$51) 63 N. L. R. 193.
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GBATIABN J.—Jamie v. The Queen
was “ not quite satisfactory to determine the question whether a parti-cular provocation is grave or not.” They accordingly considered thatthey were free to lay down a different test of “ gravity ” to that which hadbeen previously formulated and to which they had themselves subscribedon the earlier occasion.
In the present case, the learned Judge’s charge to the Jury as to thetest of “ gravity ” in relation to the plea of provocation was substantiallythe same as the following directiop in the summing-up in Naide’s case(supra) which is quoted in a passage labelled ” A ” in the dissentingjudgment of my Lord the Acting Chief Justice: —
‘‘A. It is important that you should not forget the emphasis thatthe law places on the need that the provocation should be grave. Itmust be provocation of a kind that, a man belonging to the class ofsociety to which the accused belongs would reasonably be expected toresent, and it must be provocation of such gravity as one would expecta person of that class to resent so deeply as to temporarily deprivehim of the power of self-control.”
The same test had on an earlier occasion been implicitly approved bythis Court in The King vKirigoris 1 and it has received the express andunanimous approval of the Judges in Naide’s case (supra), where theonly point of judical disagreement related to what was regarded as adifferent aspect of the law of provocation. Thus, the judgment of myLord the Acting Chief Justice in the latter case states: —
“ No objection has been and in fact can be taken to the passage‘ A ’ which quite properly and correctly sets out the method ofapproach that the jury should adopt in dealing with this plea.”
The majority of the members of the present Bench respectfully share thisview. Indeed, Judges presiding at the Assizes in this country have formany years directed juries on the assumption that the propositionsapproved in this dictum are beyond controversy.
A mitigatory plea under Exception 1 to section- 294 is not availableto an accused person who can only satisfy the jury that, at the time whenhe intentionally killed a person who had • provoked him, he was actingunder the stress of that provocation. He must in addition establishthat such provocation, objectively assessed, was “ grave and suddenenough to prevent the offence from amounting to murder ”. Thatdepends upon the actual effect of the provocation upon theperson provoked “ and upontheprobabilityoj its producing
a similar effect uponother persons ”. Gour's Penal Code of
India, (5th edition) page 993 paragraph 3307. Unless, therefore, -thesubjective and objective tests demanded by our law are both satisfied,a plea of provocation necessarily fails. This is precisely what the learnedpresiding Judge explained in so many words to the jury in the presentease. The majority of us see -no reason for taking the view that theapproval given to this test of “ gravity *’ by all the Judges who constitutedthe Court in Naide’a cose was based on a misapprehension of the true
1 (1947) 48 N. L. R. 407.
GRATIAEN J.—Jamie v. The Queen
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meaning of Exception 1 to section 294 of the Penal Code. On the contrary,our statutory definition has in effect adopted the opinion of East 1 P. C.232 that in England the offence of murder is not reduced to manslaughterunless it ensues upon a “ reasonable provocation ”, and to that extentthe Penal Codes of India and Ceylon subscribe to, and had perhapsanticipated, the criterion which was gradually developed by the EnglishJudges that the provocation must be such as would be “ likely to destroythe self-control of the ‘ reasonable man ' ”—i.e., a hypothetical personwho, in this context, is an average man of the class of society to which theprisoner belongs.
It has been suggested that the view taken by the Supreme Court inThe King v. Punohirala 1 is in conflict with this general principle, and Itherefore proceed to examine that decision in order to ascertain theextent, if any, to which it affects the present issue. Punchirala’s casewas argued before a most distinguished Bench of Judges, and was con-cerned only with the question whether, in considering the plea ofprovocation in relation to a charge of .murder under our Penal Code,the jury could properly take into account the intoxication of the personprovoked. Bertram C.J., with whose judgment Sampayo J. and'Garvin
J.agreed, referred to certain English authorities which decided that thedrunkenness of the accused may be material to the question “ whetherthe accused in fact acted under the impulse of provocation ”. In R. v.Thomas 3 for instance, Jervis C.J. had ruled that *' if a man makeshimself voluntarily drunk, that is no excuse for any crime he may commitwhile he is so; he must take the consequences of his own voluntary act;or most crimes would go unpunished. But drunkenness may be taken intoconsideration where what the law deems sufficient, provocation has been
given, becausepassion is more easily excitable in a person
when in a state of intoxication than when he is sober ”. To that extentwe think that this is without doubt also the law of Ceylon, but as BertramC.J. pointed out, R. v. Thomas and similar decisions of the EnglishCourts did not deal with the relevancy of an accused person's intoxicationto the distinct and further test demanded by the-law, namely, the gravity,objectively assessed, of the provocation. Nevertheless, Bertram C.J.took the view that a ** strong consensus of opinion ” among text writerson the English criminal law, although " based upon an insufficientexamination of the authorities ”, entitled the Supreme Court to holdthat “ in determining whether in any particular case the provocationreceived was grave, the Court or Jury may take into account the intoxi-cation of the person receiving it ”. Bertram C.J. explained, however,that this principle should be received with caution, and that “ theprovocation must still be grave. It must have some element of gravity ”—an element involving presumably some lesser (though undefined)degree than the kind of provocation which would avail a man who wassober when provoked.
The majority of us are satisfied that the ruling in Punchirala’s caseis not of general application, and was not intended to be regarded as apronouncement to the effect that Exception 1 can be successfully pleaded
(1924) 25 N. L. R. 458.
(1873) 7 O. and P. 817 (—173 E. R. 356).
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GRATIAEN J.—Jamil v. The Queen
by every person charged with murder who could satisfy the jury that theprovocation relied on, though not grave to the extent that it was likelyto deprive a normal person of the power of self-control, was nevertheless" grave to him ” by reason of some personal irritability or unreasonable-ness, howsoever induced, which rendered him specially liable to lose his self-control. Indeed, the judgment recognises that in the generality of cases thetest is far more strict, but the learned Judges proceeded nevertheless upona view that the English law permits a somewhat reduced objectivestandard of gravity to be applied in the special case where the mentalcondition of the person provoked was unimpaired by intoxication. Thejudgment states that the ” special point ” for consideration was “ whetherin weighing the question of the gravity of provocation the jury is entitledto take into consideration the intoxication of the person receiving it ”,and, quoting Exception 1 to section 2D4, holds that it is “ clear that it wasthe intention of the enactment to give effect to the principles of theEnglish law ”.
Bertram C.J. next discusses these English principles and says that all“ the text writers who have considered the subject affirm the propositionthat drunkenness may be taken into account in estimating the gravityof the provocation, and although their remarks appear to be based uponan insufficient examination of the authorities they cite, such a consensusof opinion in favorem vitae cannot lightly be ignored ”. He thereforedecided “ that in determining whether in any particular case the provo-cation received was grave the Court or jury may take into account theintoxication of the person receiving it ”.
The opinion of the English text writers as to the relevancy of theprovoked person’s intoxication to the gravity of the provocation offeredis apparently not unanimous today as it presumably was when Punchi-rala'a case was decided. Kenny’s Outlines of Criminal Law (1952 edition)page 137, for instance, makes the comment that R. v. Letenock 1 “ does notclearly distinguish between a plea of self defence and a plea of provocationin relation to a charge of murder committed by an intoxicated person ”while R. v. Hopper 2 seems to me to deal with a case which in Ceylonwould give rise to the analogous plea of “ sudden fight ”.Certainly, the principle relied on in Punchirala’s case has notbeen extended in England to cases, uncomplicated by intoxica-tion, where a person pleading provocation relies on some “ mentalweakness or peculiarity which is alleged to render him constitutionallymore excitable and passionate than an imaginary reasonable man issupposed to be.” R. v. Alexander 3, R. v. Lesbini 4 and Mancini v.
P. P. s. Such idiosyncrasies are unquestionably material to theseparate and distinct issue arising both here and in England whether aprisoner had in fact lost his self-control under the stress of the provocationoffered. Doubtless, they may also influence quite properly a subsequentadministrative decision as to whether the prerogative of mercy should beexercised in favour of a convicted person. Kenny, page 135, footnote 3.But the law. which the Judges are called upon to administer reconciles 1
1 12 a. A. B. 221.» (1913) 9 G. A. B. 139.
* (1915) 2 K. B. 431.« (1914) 2 K. B. 116.
i (1942) A. C. at page 9.
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only to tv limited extent “ respect for the sanctity of human life withrecognition of the effect of provocation on human frailty As far as thepresent appeal is concerned, the decision in Punchirala’s case deals onlywith the exceptional case of provocation offered to an intoxicated person,and has no bearing on the issue before us. Whether or not Punchirala’scase was correctly decided, the extension of the dictum to idiosyncrasiesunaffected by intoxication, so as further to reduce if not to jettisonaltogether the application of the true criterion demanded by Exception 1,is, in the opinion of the majority of the Court, not permissible.
In Ceylon the offences of murder and of culpable homicide not amount-ing to murder have been defined by statute, and we cannot withpropriety approach the function of interpreting the -Penal Code with thesame latitude which may be permissible in the case of Judges administeringthe English common law. On grounds of public policy, the Legislaturewhich enacted Exception 1 to section 294 designedly denies the miti-gatory plea of “ grave and sudden provocation ” to a prisoner whosereaction to provocation in any particular case falls short of the minimumstandard of self-control which can reasonably be expected from an averageperson of ordinary habits, placed in a similar situation, who belongs to thesame class of society as the prisoner does.
Certain passages in the judgment in David Appuhamy’s case appearto the majority of us to be based upon an erroneous impression that,while under the English law the test of gravity is whether the provocationis sufficient to deprive a reasonable man of his self-control, our lawprescribes only a subjective test not known to the English law. " Itis needless to observe ”, says the judgment of my Lord the Acting ChiefJustice in that case, " that the English law, which is essentially Judge-made law, has evolved one test only, namely, the test whether the provo-cation was sufficient to deprive a reasonable man of his self-control—Lesbini’s case 1 ■ It will be observed there is no question of a secondsubjective test under the English law . . .We have, however,fully adopted the principle that the peculiar susceptibilities of an accusedperson to lose self-control must be taken into account ”. King v. Punchi-rala 2.
If we may say so with respect, the decision in David Appuhamy's case~was based upon a misapprehension of the ratio decidendi in Punchirala’scase, and must be over-ruled. On the other hand the learned Judge’sdirection in the present case as to the test to be applied in determining'whether the provocation was “ grave enough to prevent the offencefrom amounting to murder ” was perfectly correct.
With regard to the second ground on which the appeal was pressed,the defence relies on the circumstance that the appellant was sufferingfrom tuberculosis at the time of the alleged provocation. Seyond someloose evidence to the effect that some victims of that disease “ mayharbour grievances against the whole world ” (a state of mind which isrelevant if at all to the issue of murderous intention rather than ofprovocation) the only evidence of special irritability which was led atthe trial was the appellant’s own statement, made in the course ofre-examination, that his malady had rendered him more prone to loss of1 (1914) 3 K. B. 1116.* (1924) 25 N. L. B. 458.
408GRATIAEN J.—Jamis e. The Queen
self-control than he had previously been. The majority of us havealready decided that the modified test of gravity prescribed in Punchi-rala'8 case (supra), as a special concession to a person in a state of intoxi-cation, should not be extended to cases where a person pleading provo-cation relies on an idiosyncrasy or weakness of the will induced by someother condition peculiar to himself. Besides, in the present case, thelearned Judge had unequivocally directed the Jury that, if they believed theappellant's version of the facts, their verdict should be one of culpablehomicide not amounting to murder. 'In this respect, the direction was,we think, unduly favourable to the appellant, and we are satisfied thatthe jury had rejected his evidence on which his plea of provocation wasbased. For both these reasons the second ground of appeal must fail.
The majority of the Court have taken the view that it would not beproper to indulge in any obiter dictum as to whether Punchirala’s case,which prescribed a' reduced test of gravity where an accused person wasprovoked while intoxicated, should be over-ruled. But we certainly rejectthe argument that so long as the dictum in Punchirala’s case is allowedto stand, its ratio decidendi must logically be extended to everyother case where a prisoner charged with murder pleads that he waspeculiarly prone to loss of self-oontrol under the stress of provocationwhich was insufficient in point of degree to produce a similar eSect onthe mind of an average person. It would be illogical and dangerousindeed if the true principle imposed by statute “ in order to teach mento entertain a peculiar respect for human life ” were, by a process ofjudicial interpretation, to be gradually whittled down and in due coursecompletely superseded by some different principle recognising a lowerobjective standard of gravity than the law demands before provocationcan be permitted to mitigate the intentional killing of a human being.It is impracticable to measure guilt always by degrees of moral culpa-bility, howsoever much the latter may be relevant for assessing thequantum of punishment or for exercising the prerogative of mercy.
The appellant’s application is refused and his appeal is dismissed.
Application refused.