O. P. A. SILVA, 8.P.J.—De Alwis v. The Queen
[Court op Criminal Appeal]
1972 Present: 0. P. A. Silva (President), Deheragoda, J.,and Pathlrana,J.
M. A. S. DE ALWIS, Appellant, and THE QUEEN, RespondentC. C. A. 119 of 1971, with Application 164S. C. 271/71—M. C. Gampaha, 26072/B
Summing-up—Burden of proof—Misdirection thereon—Inapplicability then of provisoto s. ti (1) of Court of Criminal Appeal Ordinance.
Ths proviso to section 5 (1) of the Court of Criminal Appeal Ordinancepermitting the dismissal of an appeal on tho ground that no miscarriage ofjustice has actually occurred even though the point raised on behalf of theappellant might be decidod in his favour ia not applicable to a case where therehas been a clear misdirection by the trial Judge on the burden of proof.
Appeal against a conviction at a trial before the Supreme Court.
Baja Gunaratne (assigned), for the accused-appellant.
Ian Wikramanayake, Senior Crown Counsel, with D. Halangoda,Crown Counsel, for the Crown.
March 7, 1972. G. P. A. Silva, S.P.J.—
The accused-appellant in this case was indicted on two counts, namely,of the murder of Madurapperuma Arachchige Karunasena de Alwis andof the attempted murder of Madurapperuma Arachchige Peiris de Alwis.
The incident in which the offences were committed is said to have takenplace at about mid-night on the day in question. The principal witnessfor the prosecution was Peiris de Alwis who was living in the same houseas the deceased and who* also had received in the course of the sametransaction no less than 16 injuries with a sword. One fact which emergesfrom the injuries on Peiris de Alwis is that, whoever the assailant was,Alwis would have-been able to identify him. There were six witnessescalled for the prosecution and five for the defence. The deceased andthe accused would appear to be close relations, living not far from eachother, and on the prosecution evidence no motive was established as towhy the accused should have cut the deceased and the other man thatday, although an effort was made by the defence to show some sort ofmotive for the false implication of the accused by the prosecution witnesses.The deceased himself had a number of injuries caused, according to theDoctor, either by one weapon or two of the same kind but the Doctor wasnot certain whether one or two weapons were used although the injurieswere consistent with either one or two weapons having been used.
G. P. A. SILVA, S.P.J.—De Alwia v. The Queen
Several complaints were made by counsel for the appellant in regardto the summing-up of the learned Commissioner. It was generallysubmitted that the summing-up would have left a lay jury so confusedthat they would not have been aware when they proceeded to decide thiscase as to what exactly was meant by “ the burden of proofThe most
offending passages which have been referred to by counsel are found atpages 289, 291 and 292. It would appear according to the evidence thatthe question of establishing any circumstances of mitigation did not arisein this case. The accused’s position was a total denial of his associationwith these offences, w'hile the prosecution evidence was that it was thisaccused and no one else who inflicted the injuries on the deceased and theother injured man. In the circumstances, there would be no purpose in atrial Judge directing a jury on the burden that lies on an accused toestablish any circumstances which would mitigate the offence frommurder to a lesser offence. It would appear however that the learnedtrial Judge has devoted a considerable portion of the summing up to setout the defences that are available to an accused charged with murderand the extent of the burden, namely, that the accused must dischargethat burden by a balance of probability while the prosecution had toprove the case beyond reasonable doubt.
Having referred to the burden that lies on an accused person to establishany circumstances in mitigation at page 290 he said :—
“ With regard to lesser offences the burden of proof falls on theaccused. He has to lead evidence which falls under anyone of thoseexceptions that I have enumerated to you. In this case, there is nosuch defence taken, therefore anyone of those exceptions may not berelevant as far as the evidence goes. ”
If the learned trial Judge had stopped there and proceeded to give thecorrect directions only in relation to the case before them one may evenhave excused what he stated earlier on the ground that he hadinadvertently or otherwise given the jury certain directions on the proofof criminal cases in general, but at the end of it asked them to dismissfrom their minds what he said because they have no relevancy in theinstant case. But unfortunately he did not stop there, he proceededagain to address the following directions which would be applicableto a case where certain defences arose and the burden would be upon theaccused to establish them. I would refer to the following directions:—
“ Now what is proof beyond reasonable doubt ? That is the degreeof proof which the prosecution has to discharge. A reasonable doubtis not a fanciful doubt. That is to say, sometimes a person may havedoubts verging on hallucinations or of some fantasia or of some extremeform like a doubting Thomas. The standard is how you act in theordinary course of your business over your own affairs or general affairsrelating to. society. That is the degree of proof that is required whenthe prosecution has to prove something, but at the same time you donot go to the other extreme requiring the prosecution to prove to
O. P. A. SILVA. S.P.J.—De Alwit v. The Queen
mathematical accuracy. That is impossible to be achieved. Youhave to take the middle path of how a reasonable man would behave,or as a prudent man in society would behave. It is only after youaccept that there is no reasonable doubt in your minds, you will accepta piece of evidence which you are considering. It is where you findthat you have to consider the case from the angle of the accused wherethe burden shifts to the accused, till then no burden shifts to the accused.He is not obliged to make any statement or give evidence. The factthat he does not give evidence should not prejudice him, and the degreeof proof where he is concerned is not proof beyond reasonable doubt.He has only to show that what he says is probable. The burden on theaccused is not so heavy once the prosecution has discharged its burden,and once it shifts to the accused he has only merely to show that acertain fact is probable or not, in other words, to create doubts in yourminds. If he succeeds in that, certainly gentlemen you must givethat benefit to the accused. So, therefore I would like to warn younot to judge with the same degree of strictness that you judge theprosecution in the case of the accused. That is a basic principleconsistent with that basic principle of the presumption of innocence.So, therefore gentlemen you have to consider the facts of the casefrom such a legal background. Let us take the facts of the case.”
When one considers these directions it is impossible to say that thejury in considering the present case may not have thought at some stagethat there was a burden on the accused to discharge by establishing somecircumstances. It is unusual for a trial Judge to give a number ofdirections to the jury which have no bearing on the case underconsideration. Unfortunately the learned Commissioner has fallen intothat error in this case by giving a number of directions which have norelevancy to the case as his own statement which we have quoted abovewould show. The most offending passage of what has been quoted wouldappear to be:—
“ The burden on the accused is not so heavy once the prosecutionhas discharged its burden, and once it shifts to the accused he has onlymerely to show that a certain fact is probable or not, in other words,to create doubts in your minds.”
We feel that this direction is altogether uncalled for on the facts ofthis case. Learned Senior Crown Counsel has drawn our attention toa number of decisions of this Court, where despite a non-direction ormisdirection in regard to a matter of law this Court has applied theproviso and not interfered with the verdict of the jury. He has citedalso the cases reported in 48 N. L. R. page 259, 52 N. L. R. page 547 and71 N. L. R. page 559 in which there were clear and unequivocalmisdirections on the burden of proof. In all these cases it would appearthat this Court has set aside the verdict of the jury. There has beenno case where despite a clear misdirection on the burden of proof thisCourt has thought it fit to apply the proviso and dismiss the appeal andaffirm the verdiot of the jury and that is what it should be for a
Perera v. Dt Alwit
misdirection on the burden of proof is so fundamental in a criminal trialthat it cannot be condoned for the reason that the jury in addressingthemselves to the task of returning a verdict in the case may set about itwith a complete misconception as to the burden of proof.
Learned Senior Crown Counsel also concedes that after these offendingdirections that were referred to, at no stage has the learned Commissionertold the jury in clear and unambiguous terms that there is no burdenon the accused to establish his innocence. It is quite correct, as SeniorCrown Counsel points out, that the learned Commissioner has given anumber of directions which might have taken away the effect of themisdirections which he gave earlier but his admitted failure to give thedirection that we have just referred to leaves this Court with the feelingthat the jury may well have been confused in regard to the burden ofproof and that they may have decided the case without knowing howthey should approach a criminal case of this nature. In the circumstances,the safe course appears to us to be to set aside the verdict of the jury and,in view of the fact that there was strong evidence before the jury uponwhich the accused might reasonably have been convicted, we order a newtrial.
Case sent back for a new trial.
M. A. S. DE ALWIS, Appellant, and THE QUEEN, Respondent