GTTNASEKARA J.—Soysa v. The Queen
[COURT OF CRIMINAL APPEAL]
Present: Gunasekara J. (President), Pulle J. andM. D. de Silva J.L- H. SOYSA, Appellant, and, THE QUEEN, RespondentAppeal 61 with Application 89 of 1952
G. 30—M. G. Kurunegala, 5,687
Charge of murder—Plea of self-defence—Might of private defence exceeded—Properdirection to jury—Penal Code, s. 294, Exception 2—Jury's rider recommending•mercy—Effect on reasonableness of verdict.
Appellant, who was convicted of murder, gave evidence at the trial statingthat he had killed the deceased in self-defence. As regards the second exceptionto section 294 of the Penal Code, the presiding Judge directe 1 the jury that if theaccused exceeded the right of private defence he was guilty of culpable homicidenot amounting to murder. It was contended for the appellant that the juryshould also have been directed to consider whether th$> appellant had actedwithout any intention of doing more harm than was necessary for the purposeof such defence, and that the omission of such a direction made the directionthat was given a misdirection.
Eeld, that there was no misdirection. On the contrary the direction wasunduly favourable to the appellant.
M. v. KirineVs (1946) 47 N. L. It. 443, distinguished.
Held further, that a jury’s rider recommending mercy cannot be assumed toinvolve a view of the facts that is inconsistent with the verdict.
IxPPEAL, with application for leave to appeal, against a conviction
in a trial before a Judge and J ury.
E. B. Sattrukulasinghe, for the accused appellant.
Boyd Jdyasuriya, Crown Counsel, for the Crown.
Gur. adv. wit.
October 21, 1952. Gunasekara J.—
The appellant was convicted of murder. The statement that hemade before the committing magistrate in answer to the charge hadbeen “ I am guilty ”. At the trial he pleaded not guilty and he gaveevidence to the effect that he had killed the deceased in self-defence.Referring to this evidence the presiding judge said in his summing-up :
“ You know the story he related in the witness-box and you knowthe submission made by counsel for the defence. Counsel for thedefence1 said that the one and only verdict that you can bring in thiscase, if you accept the evidence of the accused, was that of culpablehomicide not amounting to murder on the ground that the accusedwas defending himself and exceeded that right.”
OTTNTA SBK AR A J.—Soyaa v. The Queen
The main ground of appeal was that the learned judge had misdirectedthe jury in regard to the second exception to section 294 of the PenalCode upon which this plea was based. The exception reads :
“ Culpable homicide is not murder if the offender, in the exercisein good faith of the right of private defence of person or property,exceeds the power given to him by law, and causes the death of theperson against whom he is exercising such right of defence withoutpremeditation and without any intention of doing more harm than isnecessary for the purpose of such defence .”
The learned judge explained to the jury the right of private defence andits limits and directed them that if the appellant had acted in self-defence and “ within the ambit of the right given to him by law ” he wasguilty of no offence. As regards the exception in question he said :
“ But if you think he was defending himself but that he exceededthe right of private defence your verdict will be culpable homicide notamounting to murder.”
It was contended for the appellant that the jury should also have beendirected to consider whether the appellant had acted without anyintention of doing more harm than was necessary for the purpose of suchdefence, and that the omission of such a direction made the directionthat was given a misdirection. . We were referred to the judgment ofthis court in the case of R. v. Kirinelis 1 and it was contended, in thewords of that judgment, that “ the jury were not given the opportunityof considering the special kind of intention contained in section 294,exception 2, and they could well have had the impression from the chargethat, if they found in fact that more harm was done than was necessaryfor the purpose of defence, the proper verdict was that of murder andnot culpable homicide not amounting to murder ”.
The present case, however, is clearly distinguishable from R. v. Kirinelis.In that case the jury had been directed that if the accused had done nomore harm than was necessary for the purpose of defence he was guiltyof culpable homicide not amounting to murder, and that if he had donemore harm than was necessary he was guilty of murder. The trial judgehad said in his summing-up :•
“ Secondly, if you prefer to consider his case under the plea of self-defence, in order to find culpable homicide not amounting to murderyou must be satisfied that an occasion arose for him to defend himselfand that in defending himself in the way he did defend himself hecannot reasonably be said to have done more harm than was necessaryto have defended himself …. You will" find him guilty ofmurder if you are satisfied that he caused the death of the deceasedwith the intention of causing death …. and that there
wasn’t either of these mitigating circumstances, that is to say, thatthere was nothing that could reasonably be said to amount to graveand sudden provocation sufficient to deprive a man of ordinary temper1 (1946) 47 N. L. R. 443.
GXTNASEKABA J.—Soysa v. The Queen
to use (lose ?) his power of self-control or that there was no occasionfor the accused to defend himself at all, or that if theire was such an.occasion to defend himself, that he inflicted more harm than was-necessary to inflict ….”,
This court held that from the language used by the trial judge the jury“ may have understood that if the accused in fact exceeded the rightof private defence he was to be convicted of the offence of murder,—and they would never have applied their minds to the question whetherthe accused had an intention, to do more harm than was necessary for thepurpose of defence ” ; and observed that this intention was a specialintention, and it had not been explained to the jury.
The summing-up in the present case could not lead the jury to a similarview, for they were expressly directed that if the appellant had exceededthe right of private defence he must be convicted of culpable homicidenot amounting to murder. In the circumstances of this case, therefore,unlike in It. v. Kirinelis, no prejudice was caused to the appellant by thelearned judge’s omission to direct the jury to consider whether theappellant had acted without any intention of doing more harm thanwas necessary for the purpose of defence. On the contrary this omission- rendered the direction on the exception unduly favourable to theappellant.
It was also contended for the appellant that the verdict was unreason-able. This contention was based mainly on contradictions in theprosecution evidence and a rider recommending mercy that the juryadded to their verdict. It was submitted that the only possible justifica-tion for the rider was a view that the appellant acted in self-defence andit must therefore be inferred that the jury took that view but held that-the appellant had exceeded the power given to him by law.
The jury gave no indication of the grounds upon which the recom-mendation to mercy was based, and the argument that was addressedto us presupposes that they are necessarily ascertainable from theevidence in the case. We are unable to accept this view. A jury is-never directed that there are only certain grounds and no others uponwhich they may recommend a prisoner to mercy, for that is not thelaw. Therefore it cannot be assumed that a recommendation to mercyinvolves a view of the facts that is inconsistent with the verdict merelybecause the evidence may not disclose what may seem to us to be aproper ground for mercy if the verdict is correct: the recommendationmay well be based on some consideration outside the evidence in the case,or the jury may have taken a different view from ours as to whatfacts disclosed by the evidence can be a proper ground for such a-recommendation.
We were unable to accept the contention that the learned judge hadmisdirected the jury or the contention that the verdict was unreasonableand we accordingly dismissed the appeal.