K. D. T. PERERA, Applellant, and THE KING, Respondent

041-NLR-NLR-V-53-K.-D.-T.-PERERA-Applellant-and-THE-KING-Respondent.pdf


K. D. J. Perera v. The King
198
[Court of Criminal Appeal]
1951 Present : Nagalingam S.P.J. (President), Gonasekera J.,
Pnlle J., Swan J., and de Silva J.
K.D. J. PERERA, Appellant, and THE KING,
Respondent
Application 85 of 1951
S.C. 16—M. C. Badulla, 11,357
Provocation—Charge of murder—Plea of grave and sudden provocation—Mode ofresentment—Must it bear reasonable relationship to the provocation f—PenalCode, s. 294, Exception 1, and s. 297—Court of Criminal Appeal—Meaningof expression " Full Court ”—Court of Criminal Appeal Ordinance, s. 2.
Held (by the majority of the Court), that where the plea of grave and soddenprovocation is taken under Exception 1 to section 294 of the Penal Code,there is no room under our law for taking into consideration the mode ofresentment, or rather the violently disproportionate mode of resentment,in determining the question whether the provocation given was either grave andsudden or whether there was or was not loss of self-control.
Rex v. Naide (1951) 53 N. L. R. 207 overruled.
Held further, that where the Court of Criminal Appeal is constituted of anumber of Judges which is more than the minimum quorum that is necessaryto constitute the Court, a Full Court would be constituted, provided the Judgesassemble for the purpose of reviewing or reconsidering a previous decisionof the Court. A Court of five Judges can, therefore, overrule a decision of aCourt of three Judges.
.A. PPLICATION for leave to appeal against a conviction in a trialbefore the Supreme Court.
Ihis case was reserved for adjudication by a Bench of five Judgesowing to a difference of opinion among the three Judges, before whomit had been argued previously, in regard to the correctness of the decisionin Rex v. Naide {1951) 53 N. L. R.'207.
Colvin R. de Silva, with K. C. de Silva, V. S. A. Pullenayagam, andR. S. Wanasundera, for the appellant.—The question that arises in thisappeal is a matter of construction of exception 1 to section 294 of thePenal Code. It is wrong to construe our Penal Code by inquiring intothe principles of English law. The correct course is to examine thelanguage of the statute itself and to ascertain its proper meaning uninflu-enced by any consideration derived from the previous state of the lawor of the English law upon which it may be founded—-Mt. RamanandiKuer v. Mt. Ralawati Kuer *.
In our law, in no circumstances can exception 1 to section 294 beavailable if the offender cannot show that he committed the act whilstdeprived of the power of self-control. The offender himself, and notthe " reasonable man ”, must have lost the power of self-control. Further,the provocation which deprived the offender of his power of self-controlmust be “ grave and sudden ”. Here an objective test is applied andthe Courts bring in the concept of the “ reasonable man ”. The accused,
1 (192S) A. 1. R. (P. C.)2atp.4.
7J. N. B. 69188 (10/67)
194
K. D. J. Perera v. The King
for example, cannot say that he was a particularly excitable man.See Lesbini’s Case 1 and the case of Welsh 2. The test of proportionalitybetween the nature of the resentment and the nature of the provocationis not recognized in our law. Viscount Simon’s dicta in Mancini’sCase 3 and Holmes' Case 4 are therefore inapplicable in the contextof our Code. In terms of our law there is nothing in section 294 whichintroduces the requirement that, as a result of the provocation, theoffender had no intention to do the act. One cannot look at the extentof the act to determine the question of the gravity of the provocation.In determining the question of gravity one must look, not at the offender,but at the “ reasonable man ”. Once the offender has lost his powerof self-control one no longer requires the concept of the “ reasonableman ”. The test in Lesbini’s Case (supra) is self-contained.
R. R. Crossette-Thambiah, K.C., Solicitor-General, with H. A. Wije-rnarne and N. T. D. Kanakaratne, Crown Counsel, for the Crown.—OneCourt of Criminal Appeal cannot overrule the decision of another Courtof Criminal Appeal unless it is a “ Full Court ”. With regard to theprinciple of stare decisis see Young v. Bristol Aeroplane Co.t Ltd.3 andthe case of John William Taylor ®,
Tn Ceylon the expression “ Full Court ” means all the permanentJudges except the Judge who heard the case. See sections 2 ■ (1) and2 (4) of the Court of Criminal Appeal Ordinance. Rabot v. de Silva 7;Jane Nona v. Leo *; Attorney-General v. Karunaratne 9; section 51 ofthe Courts Ordinance. In the circumstances, the decision in R. v. Naide(1951) 53 N. L. R. 207 cannot be overruled by this Court as at presentconstituted.
The real question in this appeal is whether the verdict of the juryshoo'd be upheld or not. When one surveys the evidence as a wholeit is clear that there is no evidence of grave and sudden provocation.The accused cannot say that the person whom he killed was givinghim provocation. It' is the function of the Judge to decide whetherthere is sufficient evidence of provocation to go to the jury. Thejury must decide whether there is evidence that a reasonable man wouldbe provoked and whether that provocation came from the deceased.
Exception 1 to section 294 embodies the principles of English Law.In both systems (1) the accused must be gravely and suddenly provoked,
the accused must be deprived of his self-control, and (3) the provo-cation must be given by the deceased. In both systems the test is thetest of a “ reasonable man ”-—Blackstone’s Commentaries, Vol. 4, pp.211, 215, 216; Gout’s Penal Code, 1925 ed.', Vol. I, pp. 157, 1398, 1399.With regard to the subjective and objective tests of criminality, seeGout Vol. I, p. 168. For a summing-up on the essence of provocationsee R. v. Duffy I0. If the trial Judge told the jury that the mode ofretaliation should be taken into account in testing the gravity of provo-cation it was because that was one of the tests adopted by a reasonableman. It was only an expression of view on a question of fact and not
1 (1914)3 K. B. 1116.8(I960) 34 C. A.R.138,at p■ 142.
(1869)11 Cox 336.7(1907) 10 N. L.R.140.at p. 146.
(1942)A. C. 1.8(1923) 25 N. L.R.241,at p. 245.
8 ((1946) A. C. 588.8(7935) 37 N. L.R.57.
» (1944) 2 A. E. R. 293.70 (1949) 1 A. E. R. 932.
NAG ALIN GAM S.P.J.—K. D. J. Perera v. The King
195
a direction on a question of law. With regard to the effect of provocation'see Kenny; Outlines of Criminal Law, 1944 ed., p. 135. With regardto the question whether the mode of retaliation has any bearing on thequestion whether the provocation was trivial see Stephen’s Digest ofCriminal Law, 1904 ed., p. 188; Mancini’s Case (supra); Lesbini’sCase (supra); and (1946) 48 Cr. L. J. 838 at p. 841. To determinewhether the accused acted in revenge or under provocation the jurycan consider all the circumstances. Therefore, the mode of retaliationhas a bearing as that is a fact, among other facts, that may be takeninto account. See Queen Empress v. Mohan *; The King v. Kirigoris 2,Gouts' Penal Code, p. ’996.
Colvin R. de Silva, at the request of Court, replied.—In this particularcase the misdirection is of such a nature that it is impossible to say thatthe jury, if properly directed, would have come to the same conclusion.The proviso to section 5 (1) of the Court of Criminal Appeal Ordinanceis therefore inapplicable.
In the past a Court of Criminal Appeal consisting of five Judges havedissented from decisions of a Court of Criminal Appeal consisting oftii-ee Judges—Rex v. Jinadasa3; The King v. Velaiden i; The King v.Dingo 5.
Fur English practice see R. v. Victor George Ettridge •; R. v. G. Basker-ville 7: R. v. John William Taylor 8; and The King v. Charles LeslieNorman 9.
With regard to the duty of the jury on questions of fact see section245 (c) of the Criminal Procedure Code. [Counsel also cited the Caseof Hussein *°.]
Cur. adv. vult.
November 29, 1951. Nagalingaji S.P.J.—
Appellant in this case was convicted of the murder of a woman namedKuma.rihamy and was sentenced to death. His appeal came in theordinary course before a Bench of three Judges but as there was adifference of opinion in respect of the point of law argued which wasidentical with that considered in the case of Rex v. Naide 11 which wasitself the subject of dissenting judgments and as the majority of theCourt thought that the case of Rex v. Naide 11 was wrongly decided,the argument was adjourned for its resumption before a fuller Bench,and on the orders of My Lord the Chief Justice the appeal has nowbeen argued before a Bench of five Judges. The question whetherthe Bench as constituted is a Full Bench or not has been canvassedby the learned Solicitor-General; we shall advert to this point afterdeulng with the main question that arises on this appeal.
The question that arises is whether certain passages in the summingup contain a misdirection of such a character as to vitiate the conviction.
It has been said that in dealing with the exception relating to grave
1886) I. L. R. Allahabad 622.« (1909) 2 C. A. R. 62.
(1947) 48 N. L. R. 407.2 (1916) 12 C. A. R. 81.
(1950) 51 N. A. R. 529.3 (1950) 34 O. A. R. 138.
* (1947) 48 N. L. R. 409.» (1924) 2 K. B. 315.
‘ (1948) 50 N. L. R. 193.*« (1939) A. I. R. Lahore 471.
11 Appeal 58 of 195with application 84 of 1951 C.O A. Minutes 10-10-51[See 53NJjJ3. 20 —Ed.)
196
NAGALINGAM S.P.J.—K. D. J. Perera v. The King
and sudden provocation the directions given by the learned trial Judgeto the Jury set out the law in terms much wider than those warrantedbv the language of exception 1 to section 294 of the Penal Code.
It is conceded, as Counsel for the defence was bound to do, that thereaie other passages in the charge to the Jury which lay down the lawquite correctly and in consonance with the principles underlying theexception referred to. But it has been contended that towards the closeof the summing-up the learned Judge rather pointedly referred to certainaspects which he thought were proper to be considered by the Jury inarriving at a decision as to whether there was sudden and grave pro-vocation or not but which would have tended tb lead the Jury astrayin tbeir deliberations.
Before I set out the passage complained of, it would be well to makea very brief survey of the facts as presented to the Jury insofar as theyare material for a proper understanding of the point of law discussed.The case for the prosecution in essence was that the prisoner deliberatelyaimed at and shot and killed the deceased woman who was the wife ofa neighbour of his with a gun. There was evidence that there wasenmity between the family of the deceased woman and that of theprisoner over a period. The defence story, stated very compendiously,was that the members of the deceased woman’s family consisting oflierself. her husband and two sons aged seventeen and eighteen, peltedstones at the house of the appellant; thereupon the appellant, who wasthe owner of a licensed shot gun, with a view to scaring away the aggres-sors discharged it from the verandah of his house into the air; but farfrom taking any notice of the firing of the gun, the aggressors intensifiedthe stone throwing, accompanying their action with filthy abuse directedtowards him. The prisoner says that at that stage he was suddenlyprovoked and that he did not know thereafter what happened to him;his surmise was that he had probably lost control over himself and didnot remember what happened thereafter.
On these facts the defence set up a plea based on sudden and graveprovocation with "a view to reduce the offence of murder to one of culpablehomicide not amounting to murder. It was in regard to the considera-tions that should be taken into account for the purpose of determiningwhether there was grave provocation given to the prisoner that thelearned Judge, after dealing quite fully and properly with variousmatters, delivered himself of the passage following, to which exceptionis taken: —
“ Then, gentlemen, you must also ask yourselves whether themanner in which he showed his resentment of the provocation wasviolently disproportionate to the kind of provocation which youthick was probably given.
You see I can merely indicate to you certain general principles oflaw which are applicable to this matter, but it is for you as the judgesof fact, to decide for yourselves whether there probably was provocationand, if so, what was the nature of that provocation, and then youmust ask yourselves whether the kind of provocation actually givenwas the kind of provocation which you as reasonable men wouldregard as sufficiently grave to mitigate the actual killing of the woman
NAGALINGAM S.P.J.—K. D. J. Pereru v. The King
197
by firing at her with a gun. I cannot help you very much on thismatter, gentlemen, on the facts because you are the judges of fact. Youhave heard two versions and you must ask yourselves, having consideredall the versions, what probably did happen, and whether there was pro-bably provocation at all. For instancej if a little boy mischievouslythrows a few stones at a house, I think you will perhaps, as the judgesof fact, take the view that to shoot that boy dead would be entirelyout of proportion to the kind of provocation given; but you mustdecide what probably happened and then ask yourselves whetherthe mode of resentment was violently disproportionate or not to thekind of provocation. ”
It will be noticed that both at the beginning and end of this passagethe learned trial Judge expressly directs the Jury to consider whetherthe retaliation was not altogether of an outrageous nature in comparisonwith the provocation the prisoner may have received. Can it be saidthat one reading .this passage or hearing this passage read would notgain the impression that what was emphasized was that where the modeof resentment was so totally disproportionate to the provocation giventhe benefit of the plea that the prisoner had acted under sudden andjjrave provocation would not be available to him?
The learned Solicitor-General, however, urged that what the learnedJudge intended to convey by the passage and what the passage doesconvey was to ask the Jury to consider whether the violently dispro-portionate resentment did not indicate that the accused far from havinglost was in possession of his powers of self-control when he retaliated, and■alternatively, whether they did not think that the gross disparity betweenthe retaliation adopted by the prisoner and the provocation that mayhave been given to him disclosed a spirit of revenge rather than a lackof self-control. There are no express words in the passage to supporteither of the interpretations placed by the learned Solicitor-General norcan any such connotations even be gathered from the language used,if one construes the passage according to the natural and ordinary meaning-of the word-j employed therein. It cannot, however, be too stronglyemphasized that the import of a passage such as this has to be ascer-tained by the ordinary effect it would have on the minds of the Jurorswho hear the words spoken,, and that only once, and not by referenceto a laboured gloss that may be placed on it by refinements thoughtout with assiduity by highly developed minds. We are unani-mc uslv of the view that the passage clearly and in unmistakable termsinvited the Jury to discount the plea of sudden and grave provocationif they thought that the mode of retaliation was so disproportionately-outrageous compared with the provocation that may have been given.
The next auestion is whether this is a proper direction under our law.The learned Judge would appear to have adopted the language of theLord Chancellor. Viscount Simon} in Mancini’s case l, where thenoble Lord, adverting to this aspect of the law" of provocation under the.English Law. said:
" In short, the mode of resentment must bear a reasonable relation-ship to the provocation if the offence is to be reduced to manslaughter.
1 (1942) A. C. 1.
198
NAGALINGAM S.P.J.—K. D. J. Perera v. The King
That this is the English Law there cannot be the slightest doubt, pro-ceeding, as it does, from the highest judicial tribunal in the realm. Thata direction to the Jury on these lines would be essential for constitutinga proper and adequate charge to an English Jury cannot be doubted,for the Lord Chief Justice of England, Lord Goddard, in Duffy’s case 1expressly approved the charge in that case which contained the followinginstruction: —
‘‘ Secondly, in considering whether provocation has or has notbeen made out, you must consider the retaliation in provocation—thatis to say, whether the mode of resentment bears some proper andreasonable relationship to the sort of provocation that has been given.Fists might be ansivered with fists but not with a deadly weapon, andthat is a factor you have to bear in mind when you are considering thequestion of provocation.”
The principle t-bat under the English Law the mode of resentmentshould be considered in regard to the provocation given for the purposeof ascertaining whether the offence that was committed was one ofmurder or manslaughter is very old, and Viscount Simon’s languagequoted above can be traced to Foster’s Grown Law 2:—
“ In fact the mode of resentment must be in reasonable proportionto the provocation to render the offence manslaughter.
The reasoning adopted by English lawyers for holding that an offencethat would otherwise bemurderisreduced tomanslaughter where
provocation is given to the slayer is set out in the summing-up of KeatingJ. in the case of Welsh 3;
“ Whenever one person kills another intentionally he does it withmalice aforethought. In point of law the intention signifies themalice. It is for him to shew that it was not so by shewing sufficientprovocation which only reduces the crime to manslaughter becauseit tends to negative malice.
How provocation negatives malice is explained by the Lord Chancellor.Viscount Simon, in Holmes’ case*:
" Th,e whole doctrinerelatingtoprovocationdepends on the fact
that it causes or may cause a sudden and temporary loss of self-controlwhereby malice, which is the formation of an intention to kill or toinflict grievous bodilyharm,isnegatived.Consequently, where
the provocation inspiresan actual intention tokill such as Holmes
admitted in the present case, or to inflict bodily harm, the doctrinethat provocation may reduce murder to manslaughter seldom applies.
To appreciate the full significance of this statement of the law, one shouldrealise what it was that Holmes admitted and to which the Lord Chancellormakes reference. The admission is to be found in the answer given byHolmes to the question put in cross-examination to him, '* When youput your hands round that woman’s neck and gave pressure throughyour fingers you intended to end your wife's life, did you ? ” The answer
was, " Yes ”.
» (1949) 1 A. E. R. 933.* Page 292.
*(1869) 11 Cox 336.
(1946) A. C. 588.
NAGALINGAM S.P.J.—K. D. J. Per era v. The King
199
The principle underlying the English Law, therefore, is clear andunambiguous that the provocation given must be such as to deprivethe accused person of his self-control to such an extent that he causesdeath without forming or having an intention to kill. It is then and thenonly that the offence is one of manslaughter and not of murder. Buton the other hand, if it is established or clear from the evidence thatthough provocation of howsoever grievous a kind may have been offered,nevertheless, if it could be shewn that the accused caused the deathwith an intention to kill, the offence is one of murder and not man-slaughter. This is one of the fundamental differences between ourLaw "and that of England, and we shall advert to it more fully presently.
Although the expression “ the offence of murder is reduced to man-slaughter ” is used in English judgments, its use there is in a sensedifferent from that in which we use the expression under our Law thatthe offence of murder is reduced to culpable homicide not amountingto murder. Under English Law, the two offences are distinct in thesense that the essential elements necessary to constitute them aredifferent; in the ease of murder, there must be an intention to kill;in the case of manslaughter, no such intention can exist. Under ourlaw, however an intention to kill is an essential element in both the-offences of murder and culpable homicide not amounting to murder.
The basis, therefore, on which the English Law proceeds to holdthat in a case where provocation may have been given the use of a deadlyweapon such as a knife in reprisal and the consequent killing wouldnot constitute anything less than murder would appear to proceed onthe ground that though the person provoked may have lost his self-controi he would not have been incapable of having or forming anintention to till; and where a deadly weapon was used in resenting,snv, a blow with the fist, the use of the deadly weapon was proof positivethat the accused person had not lost his power of self-control so as todeprive him cf forming an intention to kill, and in fact the use of adeadly weapon itself was the best proof that there was a definite and-deliberate intention to kill.
Another view is suggested by the following passage from the judgmentof the Lord Chancellor, Viscount Simon, in Mancini’s case (supra) where,it would be remembered, the person who was killed, namely, Distelman,struck the accused, Maneini, with his hand or fist and the accused pulledout a dagger and stabbed Distelman fatally;
“ .the only knife used in the struggle was the appellant’s
dagger, and this followed Distelman’s coming at him and aiming ablow with his hand or fist. Such action by Distelman would notconstitute provocation of a kind which could extenuate the suddenintroduction and use of a lethal weapon like this dagger, and therewar therefore …. no adequate material to raise the issue of
provocation. ”
Stress should be laid on the word “ extenuate M in this passage, for thisis the key which opens the door revealing the existence under EnglishLaw of another basis for holding that where the mode of resentment isout of all proportion to the provocation, the plea of provocation is not•established, and that is that the question of resentment having to be
200NAGALiINGAM S.P.J.—K. D. J. Perera c. The King
reasonable in comparison with the provocation given is an independentelement in regard to the law of provocation and not one that couldproperly be correlated to the loss of self-control. The Lord Chancellormay have formulated this principle for the reason that it is impossibleto deny that a violent retaliation may be the surest indication of thevery grave nature of provocation received by the assailant. " Themore self-control is lost—and therefore the more exception 1 applies to-the case—the more likely are numerous injuries to be inflicted. ” (PerToung C.J. in the case of Hussein *.)
It has, however, been said at the bar that the violent mode of retalia-tion may in certain circumstances show the very opposite of a lack ofself-control. It is rather difficult to subscribe to this proposition.The retention of self-control cannot be deduced solely either from thedeadly nature of the weapon used or from the brutal nature of theattack made by the incensed assailant; but if either or both thesefactors be accompanied by circumstances disclosing that the assailanthad time to cool after receiving the provocation and before he launchedout the attack or that after receiving the provocation he had deliberatelyselected or acquired a lethal weapon, such an inference may be possible.
Under the English Law, therefore, if one were guided by the pronounce-ment of Viscount Simon in the House of Lords in Mancini’s case (supra)contained in the second of the citations from that judgment, the positionis inescapable that the dictum that the mode of resentment must be ina reasonable proportion to the provocation engrafts an additional elementto that law in regard to the plea of provocation, and that the plea wouldfail where retaliation is out of proportion to the provocation given ;the underlying principle being that an average Englishman is expectedto control his passion and not let himself give way to excesses. It is on thisview of the matter that it has been laid down in English Lawthat mere words, however insulting and irritating, are never regardediiS gross enough to found a plea of provocation. “ As a general ruleof law, no provocation of words will reduce the crime of murder to thatof manslaughter ”—per Blackburn J. in Rothwell’s case 2. See also thecases of Holmes (supra) and Lesbini 3.
Our law, however, in regard to the matters so far considered is quitedifferent. In the case of King v. Coomarasamy *, on a case statedunder section 355 of the Criminal Procedure Code, a Bench of threeJudges held that mere abuse unaccompanied by any physical violencewould be sufficient provocation to reduce the offence of murder to culpablehomicide not amounting to murder. This case was followed in Kingv. Kirigoris * which came up before this Court in 1947. That was acase where the provocation relied upon consisted only of words of abuse;the trial Judge told the Jury to consider whether the act of killing wasnet of “an outrageous nature and beyond all proportion to theprovocation, ’’ and this Court held that:
“ the charge is subject to this criticism, namely, that it may haveled the Jury to believe that mere abuse or insult by words or gestures,may never be regarded as sufficient provocation to support the plea-of grave and sudden provocation. This is not the law of Ceylon.
1 (1939) A. I. R. Lahore 471.* (1914) 3 K. B.1116.
■ 12 Cox 146.* (1940) 41 N. L. R. 289.
* (1947) 48 N.LJt. 407.
NAGAXilNGAM SJP.J.—K. D. J. Perera v. The King
201
This case would also appear to be the first in. our reports where an attemptwas made to guide a Jury in its deliberations in respect of a plea ofprovocation along channels as in the present case. It is true that thisCourt did not express its disapproval of such a course but on the contrarywould tacitly appear to have adopted it. But neither did it expressly-decide the point; for as set out earlier, it disposed of the appeal on theground that the charge may have amounted to a direction that words.alone would not be sufficient to constitute grave provocation.
Under our law, what has to be established by a prisoner who claimsthe benefit of exception 1 to section 294 of the Penal Code is: (1) thathe was given provocation, (2) that the provocation was sudden, (3) thatthe provocation was grave, (4) that as a result of the provocation givenhe lost his powers of self-control, (5) that whilst deprived of the power ofself-control he committed the act that resulted in the death of the victim.Our law recognizes further, as stated earlier, that although the prisonermay have lost his powers of self-control he need not be bereft of anintention to kill, and this is clear from the wording of section 294 andthat of exception 1. If we deal with the class of cases where under thesection intention is one of the essential elements of the offence of murder,it will be seen that in regard to that class there is nothing in the exceptionto denote that that intention to kill should be modified or removedbefore the exception could be applied. What is more, section 297of the Code expressly contemplates the case where culpable homicidenot amounting to murder may be committed with the intention of causingdeath.
This, as stated boiiier, is a fundamental difference between the lawof England and the law of Ceylon; so that if the mode of retaliation isto be taken into consideration as under the English Law for the purposeof negativing malice, which is the intention to kill, the application ofsuch a principle to the determination of the question, whether underour law the offence is one of murder or culpable homicide not amountingto murder would be indefensible for, as pointed out in our law, in both theoffences of culpable homicide not amounting to murder and murder,an intention to kill very often is an essential element. If, on the otherhand, one adopts the later view of "Viscount Simon and holds that aviolent mode of resentment cannot be regarded as an extenuation of theoffence of murder, that is a consideration foreign to us, as such an ideais totally absent and altogether unexpressed in the language of theexception.
There are other differences between our law and the law of Englandin respect of the offences of culpable homicide not amounting to murderand manslaughter, but it is unnecessary to pursue them for the purposeof this case. It is sufficient, however, to observe that the differencesnoticed are sufficiently marked and so clearly divergent that the indis-criminate application in every detail of the principles underlying theone system of law to the other would result inevitably in a miscarriage ofjustice.
That the differences have been deliberately introduced because ofthe differences in the temperament, nature and habits of the two peoples
•202
NAGALINGAM S.P.J.—K. D. J. Perera v. The King
there can be little doubt. People of this country are generally unableto exercise the same degree of control over themselves as Englishmenwould appear to be able to do. It is a common experience of Judgesin this country who preside at Assizes to have cases before them time andagain of prisoners who have committed killing by knives carried on theirpersons while under a sense of provocation given by a blow with handsor even words of abuse. The learned Solicitor-General conceded thatif we uphold the passage in the charge to .the Jury complained of asembodying a correct principle under our law sentences of death wouldhave to be passed more often not only in these cases but the field in whichsentences of death would have to be passed would be widened; he,of course, added that such a result cannot be permitted to have the slight-est influence in ascertaining the law; with this last observation we-emphatically agree. But, of course, if the law be such, it certainlywould be a matter for the Legislature to step in and prevent, if it thinks-proper, death sentences from being passed more frequently. Fortunately,however, there is no need for the Legislature to concern itself with anyamendment of the law, for we are satisfied that the cases of King v.Coomarasamy and King v. Kirigoris (supra) lay down the law preciselyand in consonance with the principles underlying the provisions of the-Penal Code.
Bearing in mind, therefore, that under our law neither the presence-of an intention to kill would preclude the formulation of a successfulplea based on grave and sudden provocation nor that words by themselveswould not be sufficient to cause provocation, let us proceed to an analysisof each of the requisites necessary under our law to be proved by aprisoner who claims the benefit of exception 1.
In the first place, it would be necessary to ascertain what is meantby provocation. Provocation, according to the dictionary, would beary annoyance of irritation, and for our purpose it must be definedas anything that ruffles the temper of a man or incites passion or angerin him or causes a disturbance of the equanimity of his mind. It maybe caused by any method which would produce any one of the aboveresults—by mere words which may not amount to abuse or by wordsof abuse, by a blow with hands or stick or club or by a pelting of stonesor by any other more serious method of doing personal violence.
The next requisite is that the provocation must be such as to bringit within the category termed sudden, that is to say, that there shouldbe a close proximation in time between the acts of provocation and ofretaliation—which is a question of fact. This element is of importancein reaching a decision as to whether the time that elapsed between thegiving of provocation and the committing of the retaliatory act wassuch as to have afforded and did in fact afford the assailant an opportu-nity of regaining his normal composure, in other words, whether therehad been a “ cooling ” of his temper.
The third element is that the provocation should be grave. Thatis the element with which we are concerned particularly in this case.Provocation would be grave where an ordinary or average man of theclass to which this accused belongs would feel annoyed or irritated by
203
NAGALINGAM S.P.J.—K. D. J. Pctcra v. The King
tho provocation given to (lie extent tliat ho would, smarting under theprovocation given, resent the act of provocation or retaliate it. Itis entirely dependent upon the act of the provoker and cannot be saidto be based upon the nature or mode of resentment adopted by theperson provoked in giving expression to his resentment. That thisis so will bo clearly appreciated if one took an illustration. Take, forinstance, the case of one Muslim putting a piece of hog’s flesh on a plateoff which another Muslim was dining. Could it be said that if thediner retaliated by mauling the provoker with hands the provocationwould be regarded as grave but if the retaliation took the shape ofstabbing and killing the provoker with a dagger which the personprovoked had on his person, the provocation would not be regarded asgrave but only as venial? The lack of reasoning underlying thedetermination of the gravity of provocation by reference to the natureor mode of the retaliatory act becomes manifest; if one went further,and if in the former case, assuming that the person provoked got holdof the provoker with hands and dashed him on the ground and killedhim, would the provocation yet be grave? Is the answer to dependupon a view as to whether the act of killing was or was not out of propor-tion to the provocation given? If this be the proper method of approachfo solve the question, then, if the view be taken that the act of retaliationwas grossly out of all proportion to the act of provocation, the offencewould have to be murder, while if the contrary view to be taken the offencewould only be culpable homicide not amounting to murder. Here, itwould be noticed that the element of gravity of provocation is completelyignored and the act of provocation is weighed against the actual act ofretaliation in order to decide the issue.
The exception does not countenance the application of such a test.It would have been simple enough, if the Legislature was so minded, tohave very effectively stated that where the mode of resentment isshown to be out of all proportion to the' provocative act, the benefitof the plea should not be available, and added it to the existing provisosto the exception as an additional one. In truth and in fact the graveand sudden provocation given cannot be weighed against the retaliatoryact but can and must only be taken into consideration to determinewhether it would in tho opinion of the .Jury have been sufficient to causethe ordinary man of the class to which the accused belongs to lose histemper. The gravity and suddenness of provocation has no otherbearing or relevancy under our law in regard to this exception.
If the answer to the question posited as to whether the provocationwould have been grave and sudden in the case of the average manreferred to be in the affirmative, then the presence of the next factormust be considered, and that is the fourth requisite, namely, whetheras a result of the grave and sudden provocation given the person provokedwas deprived of his power of self control.It has to be stressed that
the exception itself expressly refers to the offender being deprived ofhis power of self-control, and in view of this express reference to theoffender, it would be altogether unwarrantable to hold, as contendedfor by the learned Solicitor-General, that one must first determine inthis instance too whether the average man under contemplation would
204
NAGALINGAM S.P.J.—K. D. J. Perera c. The King
himself have been deprived of his power of self-control as a result of theprovocation given before determining whether the offender himself didin fact lose his power of self-control. We are of opinion that once theconclusion is reached that the provocation, taking the case of the givenaverage man, was grave and sudden, the next question that need receivethe attention of the Jury is whether the prisoner himself, as a result ofthe provocation received, did lose his power of self-control, it being im-material whether the “ average man ” would or would not have losthis power of self-control.
The final element which has to be established under our law in claimingthe benefit of the exception is that the prisoner did cause the deathwhilst he was in that condition which has been described as a state ofdeprivation of the power of self-control. As remarked earlier, the furywith which the retaliation may be accompanied or the brutality of theretaliatory act or the deadly nature of the weapon used may all bepointers enabling one to conclude that the prisoner had completelylost mastery over himself, or in other words, that he had no powers ofself-control left; but that is not to say that he had not an intentionto kill.
It will thus be noticed that there is no room under our law for takingconsideration of the mode of resentment, or rather the violently dispro-portionate mode of resentment, in determining the question whetherthe provocation given was either grave and sudden or whether therehas or has not been loss of self-control.
The majority of us, that is to say, all but one of us, are therefore of -the view that the invitation to the Jury to approach their task of deter-niiu'ng whether the provocation was sudden and grave by referenceto the test whether the mode of retaliation was violently disproportionateto the kind of provocation given cannot be justified under our law andwould have tended to direct the Jury to apply their minds to false issuesin the case, thereby resulting in serious prejudice to the prisoner.
The majority of us are also of the view that the appeal against theconviction should be allowed. We therefore set aside the convictionbut in terms of section 5 (2) of the Court of Criminal Appeal Ordinanceorder a new trial.
There remains for disposal the question whether the Bench as nowconstituted is a Full Bench, and if so, what are its powers, and in parti-cular whether it has the right to overrule a previous decision of theCourt of Criminal Appeal.
The learned Solicitor-General contended that the term “ Full Bench ”can only be applied to a Bench of all the Judges comprising the Courtand further urged that a Bench consisting of a smaller number would bebound by a previous decision of the Court though that decision mayhave been pronounced by a Bench of three Judges. He called attentionto section 2 (1) of the Court of Criminal Appeal Ordinance which expresslyconstitutes the Chief Justice and all the Puisne Justices as Judges ofthe Court of Criminal Appeal, and proceeded to suggest that unlessall the nine Judges who constitute the full complement of the SupremeCourt sat to hear the appeal, the Bench could not be deemed to be a
NAGAiilNGAM S.P.J.—K. D. J. Perera v. The King
SOS
Full Bench. In view of the provision in sub-section 4 of the same section:that a Judge who presided at the trial should not sit at the hearing ofthe appeal, the learned Solicitor-General modified his contention andwas content to submit that all the Judges save the Judge who triedthe case should take part before it could be said that a Full Benchwas constituted. The reasoning underlying this concession is thatthe Judge who presided at the trial is not qualified to be a memberof the Court of Criminal Appeal where that Court is summoned to hearthe appeal from a verdict passed at a trial presided over by him.
There is no reason why a similar reasoning should not be permittedto operate in regard to every other disqualification which renders itimpractical or improper for a Judge of the Court of Criminal Appealto take part in the hearing of an appeal. If this reasoning be allowedto operate, as indeed it must be, a Judge in whose name the indictmentruns cannot possibly take part at the hearing of the appeal. Apartfrom the five Judges who constitute the present Bench and the presentChief Justice *-’■o was Attorney-General at the time of presentmentof the indictmem, and in whose name the indictment runs and the Judgewho presided at the trial of the case there is only one other Puisne Judgenow functioning in an acting capacity in the Supreme Court. Thequestion whether an acting Judge of the Supreme Court could presidein the Court of Criminal Appeal appears to have been ruled in the negativeby the Privy Council in the case of Butler 1, so that all the availableJudges exclusive of those disqualified have sat at the hearing of thisappeal; and if the meaning to be attached to the term " Full Benchis to be construed in this manner, the present Bench is a Full Bench.But we do not think that any such construction should form the basisof our decision on this point.
In England the Court of Criminal Appeal is composed of the LordChief Justice and the nineteen Judges of the King’s Bench Division,making a total of twenty Judges. But even so, a Bench of five Judgeshas been referred to as a Full Bench, even as Benches of seven andthirteen Judges have been similarly referred to. The case of BenjaminMyro Smith came first before the Court of Criminal Appeal consistingof a Bench of three Judges, when the Lord Chief Justice reserved apoint of law that arose in that case for argument before a “ Full Court ” 2;the appeal was in fact thereafter argued before a Bench of five Judges 3.In contrast to this is the case of Charles Leslie Norman 4 in which theappeal first of all came before a Bench of three Judges, was thereafteradjourned for hearing before a Bench of five Judges and later wasreargued before a Bench of thirteen Judges. In fact in 1941, Mancini’scase (supra) is stated by Viscount Simon in his judgment to have goneup to the House of Lords from a decision of a Full Bench of the Court ofCriminal Appeal consisting of five Judges. It will thus be seen thatthough in 1924 no less than thirteen Judges heard an appeal, even aslate as 1941, to a Bench of five Judges of the Court of Criminal Appealthe appelation of Full Bench was applied by the highest judicial authority.
(1939) 3 A. E. JR. 12.
14 C. A. It. 74.
•Tbid. 81.
L. R. (1924) 2 K. B. 315.
206
NAGALINGAM S.P.J.—K. D. J. Perera v. The King
Quite recently the case of John William Taylor 1 was heard in appealby a Bench of seven Judges and the Court was described as a Full Courtby the Lord Chief Justice himself. There is an interesting observationin that case as regards what should be deemed to be a Full Court. TheLord Chief J ustice said:
“ A Court of Appeal usually considers itself bound by its own decisionsor by decisions of a Court of co-ordinate jurisdiction. For instance,the Court of Appeal in civil matters considers itself bound by itsown decisions or by the decisions of the Exchequer Chamber, andas is well known, the House of Lords also always considers itselfbound by its own decisions. In civil matters it is essential in orderto preserve the rule of stare decisis that that should be so but thisCourt has to deal with the liberty of the subject, and if this Courtfound on reconsideration that in the opinion <of a Full Court assembledfor that purpose the law had been either misapplied or misunderstoodand that as a result a man had been deprived of his liberty, it wouldbe its bounden duty to reconsider the case with a view to determiningwhether he had been properly convicted.”
The Lord Chief Justice thereafter proceeded to hold that the case ofTreanor 2 was wrongly decided.
The principle to be gathered, therefore, would »ppear to be that wherea. Bench is constituted of any number of Judges but more than theminimum quorum that is necessary to constitute the Court, a Full Courtwould be constituted, provided the Judges assembled for the purposeof reviewing or reconsidering a previous decision of the Court. Thisview has been adopted by this Court as would • be apparent from anexamination of the. carsus curiae. In 1947 a Bench of five Judgesof the Court which heard the case of Velaiden s expressly overruledthe decision of this • Court in the case of Punchibanda *. The case of'Jmadasa 5 was heard in 1950 before a Bench of five Judges of this Court,and that Bench expressly dissented from the judgment in Haramanis’Case 6 which was decided in 1944.
We are therefore of the view that the persent constitution of theBench constitutes it a Full Bench. A Full Bench of the Court of CriminalAppeal is not bound by a previous decision of the Court delivered bya Bench that cannot be regarded as a Full Bench and has power to dis-approve, dissent from or overrule such a previous decision. Themajority of us are of opinion that the case of Rex v. Naide (supra) waswrongly decided and overrule the majority decision in that case.
[The following judgment in Rex v. Naide, referred to above, wasdelivered on -the 10th 'October, 1951: —]
Retrial ordered.
1 (I960) 34 G. A. R. 138.
(1939) 27 C. A. R. 35.
(1947) 48 N. L. R. 409.
1 (1947) 48 N. L. R. 313.5 (1950) 51 N. L. R. 529.• (1944) 45 N. A. R. 532.